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.