Striving for Transparency and Accountability in Border Enforcement
by Leslie Haymon, 6/27/2014
The U.S. Customs and Border Patrol (CBP) has a long road ahead as the agency aims to enhance its accountability. Several stories in recent weeks have raised questions about the transparency and effectiveness of the agency’s use-of-force policies and practices. In response, CBP released long-sought documents, replaced its chief of internal affairs, and announced that it will restructure that office.
CBP, an agency of the Department of Homeland Security (DHS), is charged with enforcing customs regulations and controlling America’s international borders. In our security-conscious era, this is an important responsibility. But the public also expects such an agency to discharge its duties responsibly, especially when it comes to the use of force. Law enforcement agencies understandably use force when necessary, but this authority must be coupled with strict guidelines on its use and swift public accountability after it is exercised.
Unfortunately, a recent report by the American Immigration Council charged the agency with a “lack of transparency and accountability.” That report argued that the Border Patrol did not have “clear rules, norms, and sanctions” for misbehavior, leading to “widespread abuse of authority.” CBP’s Office of Internal Affairs is responsible for overseeing compliance and investigating potential misconduct by border agents.
Lack of Transparency Around Use-of-Force Policies
In 2012, CBP brought in an independent organization to review the agency’s use-of-force policies and practices. The Police Executive Research Forum, an organization that develops best practices to assist police agencies, was commissioned to investigate and provide recommendations. Reviewers delivered the report to CBP in February 2013, but the agency refused to release it publicly, despite numerous requests by media outlets and advocacy groups. In a refusal to the Center for Investigative Reporting, the agency cited the “deliberative process privilege” to justify withholding the document. (Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) recently introduced legislation that would restrict agencies’ ability to withhold information on those grounds.)
In February, a year after the report’s delivery, the American Civil Liberties Union (ACLU) of San Diego & Imperial Counties also filed a Freedom of Information Act (FOIA) request for the report. On May 23 – after more than three months with no reply to their request – the ACLU filed a lawsuit under FOIA to force CBP to release the report. With legal action pending, the CBP quickly relented and released the report on May 30.
The report’s contents are troubling. It found that many border patrol use-of-force incidents do not “meet the standard of objective reasonableness” and criticized the agency’s “lack of diligence” in investigating agents who fired their weapons.
In response, also on May 30, CBP issued a revised use-of-force policy, which the agency said “incorporates most of the recommendations” from the report.
Lack of Transparency Around Use-of-Force Incidents and Complaints
While CBP’s recent document release shed some light on the agency’s policies, a June 9 story by NPR highlighted the continuing lack of information about fatal shootings by border agents. The article noted that other law enforcement agencies generally assign officers to desk duty after a shooting while the department quickly investigates and provides public updates. In contrast, after a border patrol shooting, “silence — lasting years — has been normal for the Border Patrol,” according to the article. Without prompt and public responses to deadly incidents, the American people are left wondering whether officials behaved appropriately – and families are left waiting for answers.
A May 11 New York Times article found that a similar silence awaits those who file complaints against CBP for excessive force. The CBP’s Internal Affairs Office reportedly left many complaints, including allegations of excessive force against restrained detainees and improper searches, pending for years. The office reported conclusions in only 40 percent of the investigations.
The Times story was based on research by the American Immigration Council, using data obtained only after extensive efforts under FOIA. To bring more transparency to the complaint process, a group of advocacy organizations recommended establishing a public database of complaints and their resolutions. The groups also called for CBP to improve its processes for receiving and investigating complaints to ensure that misconduct is investigated fully and fairly.
On a related note, the Office of Internal Affairs at CBP is now under investigation. A June 20 report by McClatchy Newspapers revealed that the office “is being investigated for falsifying documents, intentionally misplacing employee complaints and bungling misconduct reports as part of a coverup to mask its failure to curb employee wrongdoing.”
Restoring Transparency and Accountability
In response it its ongoing difficulties, CBP announced on June 9 that it was replacing the head of internal affairs and reorganizing that office. Former officials warned that the internal affairs office had actually been hindered in its efforts by broader problems at CBP and DHS. The agency’s recent steps are a good start to ensure that its agents behave responsibly and are accountable for their actions. However, the agency will need to continue reform efforts to live up to principles of transparency noted by DHS Secretary Jeh Johnson on May 29: “Transparency is essential to the credibility of a law enforcement agency within the communities it operates.”