ICE Admits It Investigated a Critic Based on Constitutionally Protected Speech

Last June, two investigators employed by the Department of Homeland Security (DHS) showed up at David Streever’s house in Rochester, New York. Streever was not home, so they left him a note.

That note, presented as an official warning from Immigration and Customs Enforcement (ICE), is at the center of a First Amendment lawsuit that Streever filed last month, alleging that ICE agents investigated and threatened him based on his constitutionally protected criticism of their boss. This month, the government responded to Streever’s lawsuit, confirming his allegations while attempting to rebut them.

On January 26, two days after DHS agents fatally shot Minneapolis protester Alex Pretti, Streever sent an angry email to Todd Lyons, then the acting ICE director. Streever called Lyons “a monstrous human being,” likened him to the genocidal Nazi official Reinhard Heydrich, and predicted that he would be haunted by “shame at your own pathetic weakness” in defending the Pretti shooting “until your last day on Earth.”

Streever’s evaluation of Lyons was harsh, to say the least. But he did not say anything that could reasonably be construed as a threat of violence.

Brent Goodwin, assistant director for investigations at ICE’s Office of Professional Responsibility (OPR), nevertheless claims Streever’s email “had potential threatening undertones” and “potentially present[ed] a safety concern.” Because “ICE OPR did not have any information about Mr. Streever when the email came in,” Goodwin says in an August 5 declaration, it “determined that it needed to conduct an ICE investigation.”

What happened next makes little sense if ICE’s investigators, who did not even try to contact Streever until five months after his email, were attempting to resolve a legitimate “safety concern.” But their actions are completely understandable if they were trying to intimidate an ICE critic.

“YOU MAY BE IN VIOLATION OF FEDERAL LAW,” said the “WARNING NOTICE” that two agents left with Streever’s wife in Rochester on June 23. It cited two statutes, one dealing with threats of violence against federal officials, the other making it a crime to reveal “restricted personal information” about them with the intent to intimidate or incite violence against them.

Streever had not violated either of those laws. But the notice said ICE had “reason to believe” his email to Lyons “may constitute a violation of Title 18 of the United States Code,” which includes more than 1,500 offenses.

The document asked Streever to “promptly remove and/or discontinue the aforementioned behavior.” It added that “receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above.”

In addition to delivering the notice, DHS agents unsuccessfully tried to intercept Streever at John F. Kennedy International Airport when he returned from a trip to Finland with his 7-year-old daughter on June 25. They also repeatedly tried to contact him in person and by telephone at the New York hotel where he stayed that night.

After that, Goodwin says, ICE gave up, closing the case on June 30 because “all investigative leads” had been “exhausted.” ICE did that even though its agents had never managed to interview Streever so they could determine “whether or not [he] presented a threat,” which Goodwin describes as the object of the investigation.

Seeking dismissal of Streever’s lawsuit, the government’s lawyers concede his email to Lyons “put words to his disagreements with a current administration official.” In other words, they admit he was investigated because of speech protected by the First Amendment.

Other ICE critics have received similar treatment. The Wall Street Journal reports that the agency “has deployed a round-the-clock digital dragnet” that tracks online speech to identify more targets.

ICE’s retaliatory campaign, Streever’s lawyers at the Foundation for Individual Rights and Expression warn, threatens the freedom to criticize police conduct without fear of arrest. Four decades ago, the Supreme Court described that ability as “one of the principal characteristics by which we distinguish a free nation from a police state.”

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