WOLA: Advocacy for Human Rights in the Americas
3 Oct 2017 | Commentary

12 points about the “Border Security for America Act of 2017”

On Wednesday, October 4, the House Homeland Security Committee marked up (drafted and vote approved) H.R. 3548, the “Border Security for America Act of 2017.” Sponsored by the Committee’s chairman, Rep. Michael McCaul (R-Texas), this bill would authorize at least $14 billion in new border-security spending over four years, nearly all of it along the U.S.-Mexico border. Similar legislation in the Senate (S. 1757), sponsored by Sen. John Cornyn (R-Texas), has no markup date scheduled.

While some of the bill’s provisions are sensible, many of its proposals are wasteful, expensive, and divisive. Reading the bill, we get the impression that while some of it was written after detailed consultation with border security professionals, much of it is a less thought-out response to political criteria, catering to a hardline, pro-Trump audience.

H.R. 3548 would authorize a total of over $10 billion during four years (2018 through 2021) on a series of activities along the U.S.-Mexico border: border wall and other construction, technology, massive hiring of Customs and Border Protection (CBP) agents and Border Patrol agents, National Guard deployments, and aid to Mexico. Of the $10 billion, the bill does not specify the amount that would go toward building President Trump’s highly controversial border wall. Another $4 billion during these four years would go to improve infrastructure at ports of entry along the border.

Here are 12 items that deserve attention, in the order in which they appear in the bill.

1.Tactical infrastructure: no wall-building. The bill calls for new spending on “boat ramps, access gates, forward operating bases, checkpoints, lighting, roads, and physical barriers (including fencing, border wall system, and levee walls)” along the border.

For several reasons that we have detailed elsewhere, WOLA opposes any spending for new physical barriers along the border with Mexico. Walls offer little advantage outside of densely populated areas, where they already exist. Walls are expensive: the Trump administration’s proposed construction in 2018 would cost over $21 million per mile. Walls are unnecessary: migration is at 40-year lows, and most drugs pass through ports of entry, not the spaces between them where walls would be built. And walls send a terrible message to Mexico, our neighbor and partner upon whose cooperation we depend to secure our 2,000-mile common border.

Also harmful is language in the bill that would allow the Homeland Security secretary to waive all legal requirements in order to build infrastructure quickly. Threats at the border are not severe enough to justify ignoring laws passed to protect the environment, endangered species, and indigenous communities’ graves and sacred sites. Proposals to do so should, as now, be considered on a case-by-case basis.

2. Technology: mostly acceptable, but tread lightly on Americans’ civil liberties. The bill would boost spending for radar surveillance systems, acoustic and tunnel detection, sensors, unmanned cameras, and smaller drones. Most of this is worthwhile: U.S. authorities should have a real-time picture of what the border looks like, and should be able to take advantage of technological improvements. That said, it doesn’t make sense to pour money into big expensive drones like the Predator-B, which costs over $12,000 per flight-hour to operate. However, any technological deployments must take place in consultation with U.S. border communities, since heavy government surveillance raises important civil-liberties concerns.

3. Positioning: ask questions. The bill calls on the Border Patrol chief to “direct agents of the U.S. Border Patrol to patrol as close to the physical land border as possible.” This has been a frequent demand of ranchers and other residents who live near the border in rural areas and feel unprotected. However, Border Patrol had solid reasons for its so-called “defense in depth” policy: terrain and other factors make it easier to interdict people further away from the actual physical border.

4. Border Patrol Forward Operating bases: no objection. In more remote areas, the distances between the Border Patrol stations and the physical border itself are so great that agents would have to work significant overtime shifts to drive between them. As a result, Border Patrol maintains rustic “forward operating bases” where agents spend days or weeks at a time, often with poor communications and no running water. Because it makes sense to have law-enforcement personnel present in very remote areas, these facilities should be improved to make them less rustic and to implement the recommendations included in DHS’s Office of Inspector General’s 2016 report on their conditions.

5. Permanent National Guard role: risky and unnecessary. The bill would give National Guard units a permanent role performing a limited list of support duties, like surveillance, communications, and construction. A few hundred Guard personnel were performing these duties under “Operation Phalanx,” a deployment that lasted between 2010 and 2016. This operation was meant to be temporary, phased out as civilian law enforcement capabilities came online amid the big 2006-11 security buildup that doubled the size of Border Patrol.

While National Guard personnel are not strictly military, they have the same training, ranks, and insignia as regular military units. In the United States—at least since the Posse Comitatus law of 1878—it is very unusual to see U.S. military personnel playing a law-enforcement role on U.S. soil. Making that role permanent would set an important precedent that should not be established here, especially when current threats at the border are less severe than in recent decades. For Posse Comitatus and civil-liberties reasons, we also oppose language in the bill that would permanently allow the “regular” military to deploy its own drones, manned aircraft, and ground-based surveillance systems on the U.S. side of the border.

6. Mérida Initiative “refocusing”: a big step in the wrong direction. The bill would authorize $800 million ($200 million per year for four years) in U.S. assistance to Mexico from the Department of State, in coordination with the Department of Defense. It considers this a continuation of the Mérida Initiative, an aid package that has provided over $2.8 billion to Mexico since 2008. The bill calls for supporting judicial reform, institutional building and rule of law activities, along with border security efforts, but it also states that U.S. assistance should “return to its original focus and prioritize security, training, and acquisition of equipment for Mexican security forces involved in drug crop eradication.”

This would be the first time that Mérida aid has focused on drug eradication, as opposed to interdiction, with the goal of decreasing Mexico’s opium poppy crop. However, as outlined here—as an effort focused predominantly on the “hard side” of eradication—it would certainly fail.

When carried out successfully, drug crop eradication is only a small part of a larger endeavor.  Mexico needs professional, corrupt-free security personnel and basic services in poppy-growing areas to establish the conditions for a legal economy to succeed. Past experiences have also demonstrated that viable alternative development programs must already be in place before eradication efforts are even started. Drug crop producing states and the federal government also need a functioning judicial system so that the new state presence doesn’t come with additional corruption and impunity. As seen in Colombia, even massive eradication doesn’t work on its own. As long as they feel unsafe and have no viable economic options, communities will replant whenever they see a chance.

In the case of Mexico, where the armed forces are tasked with drug crop eradication, their fulfillment of this role in the rural, indigenous communities where crops are cultivated has resulted in human rights violations and abuse. Top poppy-producing states like Guerrero have been devastated by poppy cultivation and heroin trafficking with hundreds of communities forcibly displaced from their lands, thousands killed, and many others whose whereabouts remain unknown, including the 43 students who disappeared in Iguala, Guerrero in 2014. The Mexican government has yet to develop alternative development programs for these regions.

A focus solely on training and providing equipment for drug crop eradication efforts may result in a short-term reduction in Mexico’s heroin production. However, it will likely fail to put a significant, lasting dent in Mexico’s poppy cultivation, while costing U.S. taxpayers millions. While the bill does call for continued U.S. support for police professionalization and reform efforts, combating corruption, and strengthening the rule of law and human rights in Mexico, the bill also adds a focus that would prolong an eradication-based model that has demonstrably failed.

Meanwhile, it is regrettable that the bill proposes to condition 50 percent of aid on Mexico’s progress in reducing migration and drug trafficking, but would not condition any aid on the Mexican security forces’ human rights performance. This is a glaring oversight.The proposed conditions, as well as the aid authorization, should not be in this bill.

7. New Border Patrol strategic plan: acceptable, with new elements added. The bill calls on Border Patrol to develop a new strategic plan by June 2018. The agency needs a consistent process of re-evaluation to adapt to a changing (and improving) security reality along the border. However, the list of issues that the strategy document must address should include several more items: human rights, use of force principles, detention conditions, mitigating migrant deaths in U.S. borderlands, and anti-corruption and internal affairs requirements.

8. Hiring 5,000 more Border Patrol agents: costly and unnecessary. The bill would codify President Trump’s proposal to increase the size of Border Patrol by nearly one-quarter by 2021. WOLA has explained elsewhere why this proposal is unnecessary and incongruent with reality. Security and migration conditions along the border have improved in recent years, and do not warrant an increase. Instead, Border Patrol needs to reverse several years of attrition through hiring and retention, while relocating agents away from quieter sectors, where burdens are low but personnel levels are high.

CBP’s Inspector General has questioned the proposal to hire 5,000 new agents. A July report finds that Border Patrol is currently devoting large numbers of agents to management, administration, and intelligence work, rather than patrolling. It also estimates that in order to increase by 5,000 agents, Border Patrol would have to attract about 750,000 applicants—more than 1 percent of the entire U.S. population between 21 and 35 years of age.

9. Hiring approximately 4,000 more Customs and Border Protection (CBP) agents for ports of entry: worthy of support. The bill would increase, to 27,725, the number of CBP agents manning airports, land ports of entry, and other entry facilities around the country. This would increase the CBP force by roughly 4,000 agents.

This is probably necessary. Personnel needs are greater at ports of entry—the 48 official crossings along the U.S.-Mexico border—than they are in the spaces between them, where Border Patrol operates. Lines and wait times to enter the United States stifle commerce by making crossers wait as much as 1-2 hours. Still, the ports of entry are where the majority of heroin, cocaine, methamphetamine, and probably fentanyl, enter the country. While it is not clear whether 4,000 is the ideal number of personnel needed, more CBP officers means more open lanes, shorter wait times, and presumably more thorough inspections.

As with Border Patrol hires, additional CBP agents for the ports should be accompanied by stronger accountability mechanisms over the agents given the number of complaints of mistreatment by officers manning the ports documented by coalitions of border organizations.

10. Pay raises and retention incentives: worthy of support, with internal affairs improvements. Border Patrol and CBP personnel deserve competitive salaries, merit pay, and bonuses. As with any professional force, however, this should be accompanied by regular post-hiring integrity checks and an Internal Affairs office with at least twice as many investigators as today. Though the 2016 CBP Integrity Advisory panel called the agency’s Internal Affairs office “woefully understaffed,” the bill would authorize no new funding to meet this need.

11. Waiving polygraphs for new hires: too risky. The bill would waive polygraph tests as part of the hiring background check for applicants who work in a law enforcement agency (federal, state, local), as long as they’ve undergone a polygraph in the past 10 years. It would also waive polygraphs for current or former armed forces members who have passed a tier 4 or 5 background investigation.

This is unwise. Potential CBP hires must be held to a very high standard because they will be serving in positions that are highly susceptible to offers and intimidation from border-area organized crime, which aggressively seeks to corrupt agents. The risk is too great: “corruption is the Achilles heel of border agencies,” the CBP Integrity Advisory Panel noted. An old polygraph result from a local law enforcement agency cannot substitute for the rigorous Law Enforcement Pre-Employment Test (LEPET) that CBP has been administering.

The agency is arguing that this test is too onerous. 65 percent of CBP applicants have been failing (most law enforcement agencies’ failure rate is about 35 percent). Rather than loosen standards, however, we need to know why the failure rate is so high. The bill should increase screening capacity so that CBP can at least hire agents quickly enough to reverse attrition.

12. Emergency port of entry personnel and infrastructure funding: worthy of support. The bill would devote $4 billion to expand or modernize high-volume ports of entry along the U.S.-Mexico border. This makes sense: many of these facilities are dilapidated and overwhelmed by the increased interconnection between the United States and Mexico. Infrastructure needs at all ports of entry (not just those at the U.S.-Mexico border) may total $5 billion. As we note above, unmet needs at ports of entry result in long wait times and undetected smuggling. We would also urge that the bill specifically include resources to increase U.S. agents’ capability to detect guns and bulk cash being smuggled from the United States into Mexico.