From robodebt to ICE: How governments use cruelty to send a message

At its heart is an age-old question: how much pain can observers bear to see inflicted on a subject before there is popular revulsion? How much is the answer affected by the apparent plausibility of the suffering, a tendency to obey orders, or by reassurance and reinforcement of the people obeying the orders to pile it on to the victims?

After a popular revolt in Minnesota on the Canadian border, Donald Trump has pulled back numbers of his ICE (Immigration Customs and Enforcement) teams out searching for people living in the US without residence visas. Ostensibly the ICE teams had been focused on finding such aliens with serious criminal records, but the schemes had been ramped up to the point that even five-year-old Mexicans were being taken into custody and forced, in effect, to prove their citizenship on the spot. The ICE teams have been wearing masks, stripped of any identification, and, until this week, told not to wear body cameras. Politicians and ICE leaders (pretty much the same things) kept reminding the agents that immigration law gave them absolute immunity for any violence they administered while enforcing the law.

Several protesters were shot dead in incidents which the administration insisted involved attempts to kill ICE agents. But examination of digital evidence gathered from mobile telephones by spectators told entirely different stories. Minnesota has been in revolt against the invasion of ICE agents, against their activities, and against their belligerent attitude to protest, or to disputes about the extent of their powers and whether they are limited by the Bill of Rights.

Trump has retreated in the face of evidence of a strong popular reaction, and not only in Minnesota, against the brutality and unaccountability of ICE.

He has had similar conflict before, in California and in Chicago, and has stood firm, even bringing in the National Guard to help ICE. State Governors (who control the National Guard in each state until they are "federalised" for war or national action ordered by the Commander in Chief) had taken court action to stop the president sending in National Guard troops from other states. This was ultimately successful, but Trump seemed to revel in the conflict and in the law-and-order crisis he was causing. He has figured that the appearance of riots in the streets and resistance to apparently lawful activity helps establish his credential as a man upholding the rule of law against the (Democrat) traitors, hard-left-wing stooges and "liberals". Such people are, of course, promoting the lawlessness of foreign rapists, drug-dealers, and murderers he alleges represent the overwhelming proportion of those in America without valid immigration status. And some are said to eat cats and dogs.

He is, of course, having a lend of some of his most committed supporters. It has been Trump who has, in effect, suspended the rule of law and any idea of due process. Many of ICE's determinations have ignored the rights of those taken into detention and failed to accord rights they (as well as lawful citizens) enjoy under the constitution. His pretence of an emergency has enabled him to ignore settled law, past rulings by judges, including the US Supreme Court, and, to make their powers up as they go along. In a manner disturbingly like the actions of Australia's Border Force and Home Affairs during the Morrison era, there have also been determined attempts to get migrants out of the jurisdiction by plane to avoid court interference, or, in some cases, to defy orders made by judges.

It should be remembered that Trump put forward a merciless deportation of residents without visas at the 2024 election. It was very popular with voters, particularly in the states that voted Republican. ICE is an ill-trained but very enthusiastic new-ish armed body, whose origins owe something to a long and discreditable history of American vigilantism and lynching, activities justified in arrears not by adherence to process but crude results, including "sending a message" to victims and potential victims. Trump and his cronies have taken direct charge of it, and it is governed, so far as it is, by secretive direct orders, secret law and executive proclamations.

ICE agents may be public servants, but they are a private army, rather in the manner of the Brownshirts.

ICE contains all of the seeds of its own self-destruction, probably at the hands of the constituencies now cheering it on. Sooner or later, Americans, even Republicans, will imagine the power being down on them, whether by a Democrat president or a Trump in one of his moods. Moreover, the red-blooded American women and men to whom Trump has made his pitch understand, above all else, that Trump has no truck with woke, with anti-discrimination laws and practices, and the nanny state. They have learnt a cadence about welfare dependence, about immigration being at the root of all ills, about "identity politics" and about people who always claim to be victims of circumstance. [Even if there is no one more likely to claim to be the victim than Donald Trump.] "Tough" and cruel measures against immigrants are popular, if perhaps not as popular as cruel measures against people from the Democrat states. Trump is waging war against governors likely to be presidential candidates. He is also waging a general war against states - including New York, Illinois and California - unlikely ever to support him, or Trumpism.

Has Trump now abandoned his efforts to get rid of refugees? No, but he has learnt some of the limits to the sort of abuse of power in popular reaction. It's the year of congressional elections in November, and public unease about the ICE-men is one of the factors that seems to be depressing the likely Republican turnout. Now a bit of temperature-lowering is in order, even if the campaigns continue in the constituencies that love it. Trump will even continue, if at a reduced pace in Democrat strongholds, but more finely tune them. That will include planned and staged confrontations, but ones he can manage away from the powers debate.

Trump could be engaged in a campaign like Australia's robodebt under the Turnbull and Morrison governments. The government's purpose in setting it up was as much about persecuting the poor and those on welfare as on saving money from fraudulent or mistaken benefits payments. The policy was cruel and unforgiving. It put everyone who received an arbitrary assessment on the back foot, and in a position where they had to prove they did not owe money, rather than the other way around. It has been proven to have contributed to suicides among people who could not see how they were going to manage their way out of claimed indebtedness. There was a non-stop government propaganda narrative about the allegedly overpaid having cheated, and the government's intention to catch miscreants.

In fact, the whole scheme was illegal and not authorised by social security law. A good many public servants and a few politicians knew or suspected that but went to great lengths to avoid being confronted by the true legal position. And, until it became clear just how badly mismanaged and improper the scheme was, the government was revelling in the public suffering of some of Australia's poorest and most vulnerable citizens, believing it was playing to popular antipathy to "welfare bludgers". The punishment and abuse of the targets were a key part of the exercise. The protection of the perpetrators by the Public Service Commission and the unconscionable inaction of the National Anti-Corruption Commission proved, for most of the perpetrators, an entirely unexpected and undeserved bonus.

Robodebt in Australia could have been our ICE-moment. But now opportunistic use of anti-immigration sentiment is the likely setting for conflict over the country's sense of itself.

Although the robodebt royal commission was excoriating, and although the incoming Labor government promised root and branch reforms, it has persisted with robodebt-style schemes and it, and senior public service administrators, still seem to believe that the major problem of the system is fraud and overpayment. Yet the notoriety of the scheme is such that right-wing anti-Labor forces, in whatever coalition, could not safely promise to reinstate it as it was before the music stopped.

But a sustained campaign about immigration enforcement would prove very popular in attracting One Nation voters, and various Liberal and National constituencies which want drastic cuts to the immigration program. This is in part because many believe that the primary cause of the inability of younger generations to get housing is too much immigration. It is also because campaigns about immigration levels can be manipulated to be dog whistles about the racial composition of the intake, or about desires to have only white immigrants. Neo-Nazis openly promoting such outcomes make it clear that Jewish Australians are also on the target list.

Some opponents of immigration levels do not hesitate to use racist tropes about the character of immigrants. Thus, it is suggested that migrants and refugees are more likely to engage in crime (when in fact crime rates among migrants are substantially lower than in the general population.) Various immigration ministers have suggested that some asylum seekers were terrorists, and there was a vigorous campaign to prevent Palestinian entry into Australia, even though those arriving had been vetted by Israel.

In arguments about such matters, impressions and propaganda count as much as the facts. A good many honest and decent Australians believe that Australia's borders are porous and out of control, and that the nation is vulnerable to the terrorism and crime of those coming in. Some of these would be enthusiastic but not disinterested crusaders in ICE-style immigration raids. Early senior Border Force personnel seemed to think that their functions could include random stopping and searching of people looking like immigrants. They appeared enthusiastic for the powers and the role. Probably prompted by their base agency of Home Affairs, they have also been involved in dodgy efforts to evade and avoid external review of immigration decisions. Voters, even those who want drastic cuts to immigration levels, should wonder why this necessarily involves a focus on deportation, even if Australia contains many overstayers. They should also want to know details of proposals for enforcement, and the legal supervision it would involve.

Just before World War II, Halford Luccock, a professor of divinity at Yale, remarked that when and if fascism came to America, it would not be labelled "made in Germany".

"It will not be marked with a swastika; it will not even be called fascism. It will, of course, be called 'Americanism'."

MORE JACK WATERFORD:

Professor Luccock was not merely being witty. He saw similarities between new totalitarian regimes in Germany, Italy, Spain and Portugal and some of the bigoted and racist isolationist movements in the US. But he also saw that US authoritarian movements had followed some developments abroad but also woven into them some of America's own brands of sectarian hatred and racism. It paid more attention to anti-immigration sentiment, particularly the desire to exclude Catholics, Jews and Latinos. The American civil war of the 1860s still cast its pall, not least in national efforts to keep black Americans in their place in a second-class citizenship. The Old Confederacy had almost a political, social and cultural personality of its own, but it was far from the only threat to social cohesion. The US is, in significant ways, falling apart and its survival depends not so much on a restoration (because that is impossible) as on how it is reimagined and remade.

There are clear signs of fascism in some of the governing models adopted by Trump, not least in its assumption of executive power far more extensive and far less under control by the congress and the courts. It is also to be seen in the increasingly racist phrases being used by Trump and the impression he gives of being focused on the interests of white Americans only.

It makes for gloom. But it must also be remembered that the stresses and strains are not merely two dimensional and that there are many players jostling for a place. Trump may be rejecting some forms of checks and balances but is staring at loss of control of one or both houses of his parliament. This will seriously affect how he sees out his presidency.

In Australia, the rise of One Nation and the virtual demise of the Liberal Party will cause permanent and possibly dangerous changes in our system of government. But they will not happen in a vacuum, and the way the Albanese government sets itself up as a counter-balance is probably more important than the moods, the whims or the impulses of Pauline Hansen and Barnaby Joyce. Neither has so far made much of a mark from their decades in politics. It's about time Anthony Albanese began making his own mark.