US Immigration and Customs Enforcement is moving to place its private detention network beyond the reach of federal inspectors, publishing draft contract terms that declare state and local laws “shall not apply” to the facilities, according to federal documents reviewed by WIRED.
The new policies were published earlier this month, a day after a judge ruled that the contract could not violate state law and ordered that the largest ICE facility in the Pacific Northwest be opened to health officials in Washington.
The decision, by US District Judge Benjamin Settle, came after three years of litigation; 10 refused to be tested, according to the state; and 3,500 prisoner appeals. A Ninth Circuit judge temporarily suspended the order on July 21, and a decision on the longer stay is expected in early August.
Settle ordered an immigration detention center operator in Tacoma to agree to Washington state health inspectors, ruling that nothing in the company’s federal contract prohibits them and that no contract can override state law anywhere. The next morning, July 10, ICE published the terms of a draft contract for 5,500 detention beds in four states—including language declaring that state and local laws “shall not apply” to the operation of the facilities.
Settle found that GEO Group, the private prison company that owns the Tacoma facility, entered into a new contract with ICE during the trial to support the company’s claim that ICE, not GEO, controlled access to the facility. “Exemption requires the intent of Congress, not the contract,” Settle replied, “and the new GEO contract cannot override state law, even if it intended.”
Settle also noted that GEO’s court filing left out part of the contract agreement in which ICE agreed to ask the Justice Department to have GEO dismissed from its operations, or to replace ICE as a defendant.
The new procurement document, posted to the government contracting site on July 10 and first reported by Project Salt Box magazine, is framed as an early step toward a competitive bidding process, but its terms suggest otherwise. Facilities must begin housing inmates within 30 days of the award—a timeline that no new construction can meet—and the number of beds needed and facilities aligned with the four GEO detention centers already operating: Tacoma; Aurora, Colorado; Pompano Beach, Florida; and Philipsburg, Pennsylvania.
Florida’s requirement, 700 beds, is exactly the same as the contracted bed guarantee for the Pompano Beach facility, according to ICE facilities data. The operating agreements for these four locations expire in the coming months: The Tacoma contract runs through October 27, and the Pennsylvania regional agreement expires on September 28. GEO’s securities filings show that the Colorado and Florida contract terms expire in October and September, respectively.
Companies had less than a week to respond before the window closed on July 17.
The terms of the new draft contract. But the language trying to overturn state law isn’t: It appears word for word in the Tacoma contract that GEO signed in March, mid-trial—the same contract that Settle ruled “cannot override state law, even if it intends to.” ICE is now proposing to expand it to three more states.
Settle rejected the language once. But his decision is preliminary, not binding on a court outside of Washington, and for ICE’s purposes it need not survive. Washington needed three years of litigation to get inspectors in the door of one facility—and they’re still out, barred from staying while the GEO appeals. Written into contracts in all four states, the same language could restart that war in each of these states at the same time.
