Originally Published in The Nation
Ken Klippenstein - October 6, 2020
The next day, ICE shot back. It issued a press release, posted in a Twitter thread, mentioning Lavin by name. The statement accused Lavin of “baselessly slandering an American hero,” whom it described as a combat-wounded Marine Corps veteran who’d had both legs amputated, and demanded an apology and retraction from both her and her employer. Lavin recognizes she made a mistake, yet the question she raised was hardly outrageous; even the FBI has warned of the presence of white supremacists in the ranks of US law enforcement. But Gaertner quickly became a cause célèbre for many on the right.
Almost immediately, Lavin received a flood of abusive messages, including anti-Semitic and misogynistic slurs. The neo-Nazi website The Daily Stormerpublished an article titled “Greasy Fat K—e ‘Fact Checker; Talia Lavin Confuses War Hero’s Military Tattoo for ‘Neo-Nazi Symbol.’” Right-wing provocateur Milo Yiannopolous used Paypal to send Lavin $14.88—alt-right shorthand combining a white supremacist slogan, the “14 words,” with code for “Heil Hitler”—a stunt for which Paypal suspended his account. The furious response would only grow after Fox News’s Laura Ingraham broadcast a segment referencing the ordeal, calling Lavin and another reporter, Lauren Duca, “little journo terrorists,” and demanding that Lavin be fired. Within days, Lavin not only apologized; she resigned from her position at The New Yorker, where she had worked for three years. Today, Lavin is a freelance journalist.
“That’s my Joker origin story of how I came to report on the far right,” Lavin told me. She has now written a book on the subject. Lavin takes issue with ICE’s claim that she had “perpetuated” any harmful allegations about Gaetner’s tattoo, pointing to the fact that she deleted her tweet so quickly that no copy publicly remains. “I was flung face-first into a vat of poison on the strength of a complete lie,” she says.
In August 2019, I filed a Freedom of Information Act (FOIA) request to find out more about what had happened behind the scenes. Following a Kafkaesque process in which ICE referred my request to the wrong department and failed to respond within 30 days as required, I sued the agency in federal court. (Full disclosure: Lavin is a co-litigant in the case, having signed a privacy waiver in order to authorize documents pertaining to her to be disclosed to me.) In October, ICE finally produced documents responsive to my request. But my attorney, Beth Bourdon, was furious with the extent to which the agency had redacted or otherwise withheld records that were clearly subject to disclosure.
“I expect law enforcement to take a liberal view of what qualifies for redaction when preparing documents for release under a FOIA request,” said Bourdon, who filed the lawsuit on my behalf in the Middle District of Florida. “But the clear abuse of exemptions and the resulting absurdity of the redactions in the records ICE produced were stunning and enraging.”
After months of additional negotiations, we finally obtained less-redacted documents. They evoke a deeply politicized and at times paranoid atmosphere, redolent of President’s Trump’s recent rhetoric alleging a “war on cops.” In one instance, the documents reveal top ICE officials working together to dispatch federal agents to respond to what appears to be a single off-color tweet, about which they also released an intelligence report.
At first, ICE got to work trying to cast Gaertner in the best possible light. As one of the e-mails released to us under FOIA shows, ICE Press Secretary Jennifer Elzea wrote on June 18, “I’m waiting on the blurb from [name redacted] so we can work something up about his [Gaertner’s] honorable service.”
But ICE was up to more than just a press release. The documents obtained under FOIA reveal that ICE Public Affairs warned the leadership of one of ICE’s federal law enforcement divisions, Homeland Security Investigations (HSI), about what it claimed was a credible threat to Gaertner’s life. An e-mail from a redacted source says, “As an FYI, Justin has let me know he and his family feel unsafe and threatened because of all the threats on social media. I have informed SAC and leadership.”
The only such tweet referenced in the correspondence was undoubtedly mean-spirited, reading, “If Justin works for ICE, I wish whoever wounded him in combat would’ve finished the job.” It does not, however, appear to be a threat. Regardless, ICE pressed ahead, its assistant director of public affairs, Liz Johnson, notifying Acting Director Thomas Homan, along with the head of HSI, “Unfortunately, this employee and his family were already dealing with some personal challenges, which are now being compounded by threatening messages they’re seeing posted online. OPR and HSI are coordinating to provide support to him…”
“HSI Tampa will be carefully assessing the twitter based threats and will take appropriate action,” an HSI official replied. “Looping in AD [Assistant Director] Ip for C3 [ICE Cyber Crimes Center] support. HSI Tampa will be submitting a SIR [Significant Incident Report] shortly.”
Incredibly, this chain of events was set in motion by a tweet that ICE may not have ever seen. When asked for Lavin’s original tweet, ICE Press Secretary Jennifer Elzea replied, “I don’t have it at hand, but I’ll see if we can locate it. I have the tweet where she mentions deleting it.”
While it’s normal for government public affairs offices to promote the agency’s mission and policies, they rarely single out private individuals—especially journalists. Press releases typically adopt a formal tone, perhaps owing to the layers of legal oversight they are required to pass through, particularly in regard to subjects considered politically sensitive. This oversight would make it unlikely that ICE’s tweets about Lavin did not at least pass the desks of high-ranking officials.
“It’s certainly unusual and unprofessional.… The tweet is definitely not a typical public affairs office product,” said James Schwab, a former ICE Public Affairs officer, of ICE’s press release. Schwab had served as a public affairs official for ICE since the Obama administration, resigning in 2018 over what he considered an extremely political swing within the agency. “It was awful,” he told me. “It wasn’t public affairs anymore. It was turning into a propaganda machine.”
According to Schwab, the incident may implicate an unspoken political hierarchy within the federal government. “ICE is the agency most aligned with the president and his administration,” he said. “These types of ICE statements are often crafted or heavily influenced by presidential appointees at ICE headquarters.”
Schwab explained that during his time under the Trump administration, “statements that would garner a lot of attention were cleared by ICE HQ, then forwarded to a DHS spokesperson for approval. Many times that approval included input from the White House, specifically from Stephen Miller.”
Miller is a senior adviser to Trump who has emerged as a key advocate within the administration for hard-line immigration policies. Miller served as architect for the travel ban, the family separation policy (under which undocumented children are separated from their parents), and a crackdownon the number of refugees the United States would admit. While the documents obtained by The Nation do not mention Miller or any other White House official, Schwab stressed that ICE is careful not to put things in writing.
“ICE is notorious for keeping shit out of e-mails,” said Schwab. This practice may have permeated all of the DHS. In 2018, Buzzfeed News reported that then–DHS Secretary John Kelly instructed an official to avoid memorializing their work in the form of e-mails, saying, “FOIA is real and everyday here in the cesspool, and even federal court action on personal accounts is real.” (Ironically, BuzzFeed obtained the comment in response to a FOIA lawsuit.)
In spite of support from the top, paranoia has gripped ICE. As I reportedlast year, ICE has supplemented its ordinary activities with “Operation Frozen Shield,” a series of enhanced security measures to protect against threats like active shooters. The operation came in response to what then–Acting Secretary Kevin McAleenan described in a memo as a “trend of violence against our ICE officers,” referencing two examples: an armed attack on an ICE facility in Tacoma, Wash., and one in San Antonio, Tex. (No ICE employees were harmed in either incident.)
In June of this year, I reported that the Trump administration had quietly granted ICE greater secrecy privileges under a special “Security Agency” designation. The designation, typically reserved for agencies engaged in highly sensitive work like the FBI and Secret Service, permits ICE to conceal identifying characteristics of personnel from public disclosure, including name, job, title, and salary information. This designation applies not just to agents in the field but all ICE personnel. ICE’s sister agency Customs and Border Protection (CBP) obtained the same designation and, as I reported in February, an agency memo cites as justification a single Twitter user who it says was posting publicly available information about ICE and CBP officials
“This past summer, CBP and DHS became aware of a Twitter user posting employee information commonly found in the OPM [Office of Personnel Management] Open Government releases of salary information for Federal Employees,” the memo stated. “The information posted on Twitter was considered by OPM to be public information, and is available through several Federal employee salary database search websites. This is but one of the many examples of where the disclosure of CBP employees’ information was harmful.”
Over the course of my FOIA lawsuit, the Justice Department has repeatedly pushed back on our attempts to obtain the names of involved personnel. At the time of this writing, we are still fighting in court to have ICE disclose more of the names involved in the correspondence.
Employee safety may not have been ICE’s only motive here. In an e-mail attachment titled “The power of social media,” ICE describes the viral success of its tweets about Lavin. “A fact checker with the New Yorker shared a photo of an ICE employee that she found on the ICE Twitter account and falsely accused him of having a Nazi tattoo,” it recounts. “This resulted in a false narrative being spread quickly throughout social media.” But the document takes pride in the visibility of ICE’s response, noting that “approx. 2.8 million users saw the tweet thread.” It goes on to mention several other high-traffic tweets from the ICE account. Those about Lavin were the highest performing.