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Trump executive order requires full implementation of DNA fingerprint law

Trump executive order requires full implementation of DNA fingerprint law
 

Last Week, President Donald Trump reignited debate over the implementation of the DNA Fingerprint Act of 2005 with his Securing Our Borders Executive Order (EO). The Biden administration had been criticized for failing to fully implement the twenty-year-old law.

Section 9 of the EO instructs the Attorney General and the Secretary of Homeland Security to take all appropriate actions to ensure the collection of DNA samples from all aliens detained by federal authorities. It also directs the Secretary of Homeland Security to “take all appropriate action to use any available technologies and procedures to determine the validity of any claimed familial relationship between aliens encountered or apprehended by the Department of Homeland Security” (DHS).

The administration’s rule changes are supported by advances in technology that streamlined DNA collection and submission processes. Whistleblower testimony and government reports also played a role for having suggested only four months ago that fewer than 40 percent of eligible immigrants had their DNA collected.

Originally part of the Violence Against Women and Department of Justice Reauthorization Act, the law mandated the collection of DNA samples from individuals arrested, charged, or convicted of crimes, as well as from non-U.S. persons detained under federal authority. These DNA profiles feed into the FBI’s Combined DNA Index System (CODIS), a vital tool for law enforcement to compare DNA profiles and develop investigative leads.

Despite its bipartisan passage and subsequent regulations issued to enforce compliance, the Act’s implementation has been uneven, leaving gaps that Trump’s executive order seeks to address.

The DNA Fingerprint Act was designed to strengthen law enforcement’s ability to solve crimes and prevent repeat offenses. By 2020, the Department of Justice finalized regulations that compelled the Department of Homeland Security (DHS) to collect DNA samples from non-citizens in its custody, thereby removing exemptions that had existed since 2010 due to resource constraints.

A key example of the consequences of this under-implementation is the high-profile murder of Rachel Morin in Maryland. Her alleged killer, Victor Antonio Martinez-Hernandez, a Salvadoran gang member, illegally entered the U.S. multiple times before committing the crime. Despite being apprehended and deported three times in early 2023, DHS failed to collect his DNA. Only after a subsequent crime in Los Angeles was DNA collected and linked to Martinez-Hernandez through CODIS. This tragedy underscored the stakes of noncompliance with the Act, as compliance could have potentially flagged Martinez-Hernandez earlier, preventing future offenses.

Congressional Republicans, including Sen. Chuck Grassley and Rep. Michael McCaul, amplified calls for stricter adherence to the law. In a September 30, 2024, letter to President Biden and Vice President Kamala Harris, cited whistleblower accounts and data showing systemic failures within DHS to collect DNA from immigrants encountered at the border. In FY 2022, they disclosed, Customs and Border Protection (CBP) collected DNA from only 37 percent of the 2.7 million individuals encountered. The letter demanded immediate corrective action, citing the Rachel Morin case as emblematic of the dangers posed by noncompliance.

Despite these criticisms, the challenges facing DHS and CBP in implementing the DNA collection program are not trivial. A 2023 report by the Government Accountability Office (GAO) highlighted persistent issues, including shortages of DNA collection kits and inadequate data tracking systems to monitor compliance effectively. While the FBI has enhanced its capacity to process DNA samples, including securing additional funding to address kit shortages, field locations along the southern border – where migrant encounters are most frequent – continued to experience operational gaps. These gaps hinder the ability to collect DNA consistently from all eligible individuals as required by the 2020 DOJ regulation.

CBP’s pilot program for DNA collection began in 2020 and expanded nationwide by the end of that year. The program requires field agents to collect DNA from individuals subject to immigration enforcement and those arrested on federal charges. However, the lack of comprehensive data on why some individuals’ DNA is not collected has made it difficult to assess the program’s efficiency.

The GAO report recommended that CBP develop mechanisms to systematically track reasons for non-collection and improve training to ensure compliance. The report also noted that the FBI had rejected less than 4 percent of the DNA samples submitted due to issues with sample integrity, indicating that the technical aspects of collection are generally sound.

The political dimensions of the issue further complicate matters. The Trump administration’s executive order is widely seen as a response to perceived border security failures under the Biden administration. Supporters argue that stricter enforcement of the DNA Fingerprint Act is necessary to address the ongoing border crisis and ensure public safety. Opponents, however, caution against the potential for overreach and the implications for privacy rights, particularly for immigrants who may already face significant vulnerabilities.

The role of whistleblowers has been pivotal in exposing lapses in compliance. Protected disclosures to Grassley’s office revealed not only the operational shortcomings of DHS but also instances of retaliation against whistleblowers. According to these accounts, whistleblowers faced demotions, loss of retirement benefits, and even threats of financial ruin for raising concerns about the agency’s failure to follow the law. These allegations of retaliation, corroborated by the Office of Special Counsel, highlighted systemic issues within DHS that go beyond technical or logistical challenges.

The implications of the Securing Our Borders EO will depend on how effectively DHS addresses the gaps identified in the GAO report and whistleblower testimony. Scaling up DNA collection efforts will require not only adequate resources but also stronger accountability mechanisms to ensure compliance at all levels. This includes addressing data collection gaps to track noncompliance and ensuring that all field locations have sufficient supplies of DNA collection kits. Additionally, fostering a culture of transparency and protection for whistleblowers will be essential for sustained improvement.

The broader question of privacy rights and ethical considerations also looms large. Civil liberties organizations have raised concerns about the expansive scope of the DNA Fingerprint Act, particularly its application to individuals who have not been convicted of crimes. While the law includes provisions to protect the privacy of DNA profiles, critics argue that the potential for misuse or unauthorized access remains a significant risk. Balancing the need for public safety with respect for individual rights will be a key challenge as the Trump administration moves to fully implement the Act.

As debates over immigration and border security continue to dominate the national discourse, the implementation of the DNA Fingerprint Act serves as a microcosm of the broader tensions between enforcement and rights. The Trump administration’s executive order underscores the importance of leveraging technology and data to enhance public safety, but it also raises questions about the costs – both financial and ethical – of achieving these goals. For lawmakers, law enforcement agencies, and civil society, the challenge will be to ensure that the promise of the DNA Fingerprint Act is realized without compromising the principles that underpin the rule of law.

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