With the 2016 presidential primaries around the corner, immigration reform has been a common topic of conversation, with border security the central theme. However, frequently overlooked in this conversation are the consequences of devolving an overwhelming degree of power to Border Patrol agents, whom are subject to minimal accountability.
Resisting efforts at transparency, Customs and Border Protection (CBP) refused to disclose files requested by the ACLU in January 2014 under the Freedom of Information Act. After suing for access, the ACLU obtained 6,000 pages of complaints, arrest statistics and other records, and recently released its findings in a report that paints a disquieting portrait of systematic civil rights violations, faulty oversight mechanisms that result in little accountability or transparency, and limited efficacy of CBP’s interior checkpoint operations.
CBP is the largest of seven component agencies within the Department of Homeland Security (DHS), housing 60,000 employees and a budget of $12 billion. 44,000 of those 60,000 employees are armed law enforcement officers, making CBP the largest law enforcement agency of the United States. Yet, ironically, according to Professor Derek Bambauer, CBP has the least amount of oversight, positioning it as a “breeding ground for abuse.” A report written by the Homeland Security Advisory Council, dated June 29, 2015, concluded that CBP was prone to corruption, with the number of arrests of border patrol personnel on corruption grounds “far exceed[ing], on a per capita basis, such arrests at other federal law enforcement agencies.” Additionally, the report found that out of 67 shootings between January 2010 and October 2012, 19 resulted in deaths. There were also repeated instances of agents stepping in front of fleeing cars to justify opening fire, and agents shooting at rock throwers from across the border instead of moving out of harm’s way.
The report attributes this deeply rooted corruption problem to the Homeland Security reorganization in March 2003, when all Customs Special Agents were transferred from CBP to Immigration and Customs Enforcement (ICE). As a consequence, on March 1, 2003, CBP was temporarily left with no internal affairs investigators and today, remains very understaffed, with only 218 internal affairs investigators for 60,000 employees. Moreover, to the extent any investigations of corruption have occurred, they have been undertaken outside of CPB by the DHS Officer of Inspector General, are nearly all reactive–failing to use proactive risk analysis to identify potential corruption, and take too long. The report recommended the addition of hundreds of internal investigators, and provided updated guidelines on the appropriate use of force.
Yet, as indicated by the ACLU’s report released last week, little progress appears to have been made since the LA Times first released the Homeland Security Advisory Council’s report. The ACLU report documents over 140 civil rights complaints, most stemming from unreasonable searches and seizures conducted on fixed checkpoints along the border. Of those complaints, only one seems to have resulted in disciplinary action and there, the agent received a one-day suspension for unjustifiably stopping a vehicle driven by the son of a retired Border Patrol agent.
The records detail examples of Border Patrol agents detaining, searching, and terrorizing individuals and families at interior checkpoints and in “roving patrol” vehicle stops; threatening motorists with assault rifles, electroshock weapons, and knives; destroying and confiscating personal property; dozens of false alerts of Border Patrol dogs resulting in prolonged searches and seizures of innocent travelers; and Border Patrol agents interfering with citizens’ efforts to hold agents accountable by video recording checkpoints (i.e. in November 2014, two Arizona residents filed a lawsuit against the U.S. border control, alleging harassment, intimidation and retaliation in response to citizen efforts to monitor checkpoints).
One complaint detailed the detention of a man at a checkpoint after a canine falsely alerted. While no illegal drugs were found, he later discovered that Border Patrol agents had confiscated much of his prescription medication.
In a second complaint, a military veteran alleged racial profiling after a Border Patrol agent terrorized his children, repeatedly questioning “How do I know these are your kids?” before turning and interrogating his children, asking, “[I]s this your dad…really he’s your Dad[?]”
And in another, a woman was detained following a false canine alert. A Border Patrol agent told her to “put the fucking keys in the truck,” and when she objected to his language, the agent said, “I can talk to you any fucking way I want.” A half hour later, a woman and her brother were detained at the same checkpoint following another false canine alert. An agent threatened her brother with an electroshock weapon before releasing them. Later that day, agents attempted to prevent a different woman from videotaping them and allegedly spit on her following another false canine alert.
The report further details the various ways in which CBP obstructs efforts at oversight and transparency by: failing to record stops that do not lead to an arrest (even when they result in lengthy detention, search or property damage), failing to document false canine alerts, and failing to accurately disclose the number of civil rights complaints to Congress (i.e. while DHS oversight agencies reported just three complaints involving Fourth Amendment violations between 2012-2013, government records reveal that at least 81 complaints originated in Tucson and Yuma, Arizona alone).
Moreover, the report questions the efficacy of CBP’s interior checkpoint operation. Apprehension statistics demonstrate that in 2012, checkpoint apprehensions accounted for only .67% of total apprehensions. In 2012, 9 out of 23 Tuscon Sector checkpoints produced zero arrests of “deportable subjects.” Additionally, Yuma Sector checkpoint arrests of U.S. Citizens exceeded those of non-citizens 8 to 1, with an overrepresentation of poor residents and people of color.
Given the limited efficacy of these law enforcement practices, and the drastic consequences in the form of serious civil rights violations, it is worth asking whether this is a system we want to maintain. What are the real benefits, when compared with the costs? And in any event, its clear that there need to be real oversight mechanisms, with real repercussions, if people’s constitutional rights are to be respected.