WOLA: Advocacy for Human Rights in the Americas

AP Photo/Russell Contreras

21 Feb 2017 | Commentary

Increases in Immigration and Border Agents Require Accountability

Background This article is part of WOLA’s “Beyond the Wall: Migration, Rights, and Border Security” initiative, which addresses the impact of Trump administration policies with fact-based analysis, alternatives, and advocacy strategies.

The new Homeland Security guidelines call for a dramatic increase of personnel for Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Homeland Security agencies like CBP, its component Border Patrol, and ICE operate in an environment that requires tough decisions on use of force. This is why these agencies must be held to a very high standard of accountability.

This accountability is threatened by changes that the Trump administration seeks to implement. These include a rapid wave of new hiring, the replacement of reform-minded directors, and language at the highest levels fostering a culture of hostility to outside scrutiny.

The U.S. Border Patrol, an agency with a necessary mission, has faced high-profile use-of-force and detention complaints, along with corruption cases numbering in the hundreds over the past 10 years. The agency doubled in size between 2005 and 2011, but did not sufficiently scale up proper vetting of recruits or internal controls.

“In its brief history,” noted a March 2016 independent review commissioned by the Homeland Security Department, “CBP has not been noted for its transparency when it comes to use of force incidents.… Its disciplinary process takes far too long to be an effective deterrent.” The report found CBP “vulnerable to a corruption scandal that could potentially threaten the security of our nation.” The Border Patrol union, the National Border Patrol Council (NBPC), rejected the report: “the entire report assumes that we are all corrupt and need to be treated as such,” an agent complained on the NBPC podcast.

The NBPC, which represents a majority of Border Patrol line agents, chafed at the Obama administration’s modest attempts at accountability, like publicizing use-of-force guidelines, adopting body cameras, strengthening internal-affairs units, and imposing more frequent anticorruption “integrity checks.” Last year, when CBP instituted a “Deadly Encounter Averted” award for agents who defuse situations without deadly force, the NBPC attacked it vociferously. “This is typical pandering by our executives to organizations like the ACLU and illegal alien advocates,” NBPC Vice President Shawn Moran told Breitbart.

On use of force, these efforts yielded results. Between 2012 and 2016, U.S. Customs and Border Protection (CBP) saw agents’ use of firearms drop from 58 incidents to 27 per year, while use of less-lethal force remained unchanged. Anti-corruption efforts, including the 2010 Anti-Border Corruption Act and a new CBP Integrity and Personal Accountability Strategy, have yet to show publicly available results, though arrests and investigations have increased. Hiring has become more rigorous—perhaps too much so, as polygraph tests required by a 2010 law may reject a majority of applicants, and until recent changes, caused the process of hiring a new agent to average 460 days. New hiring has not outpaced attrition since 2013.

This halting progress on accountability is in danger of stalling. Within a week of President Trump’s inauguration, the CBP Commissioner and Border Patrol Chief were gone. A January 25 executive order would increase Border Patrol by 5,000 agents over its current level of just over 20,000. The unions, which endorsed Trump’s candidacy during the primary phase, have seen their influence grow—but internal affairs bodies have not.

“You guys are about to be very, very busy doing your job the way you want to do them,” President Trump told the Border Patrol and ICE union presidents, who were invited to attend his January 25 speech at the Department of Homeland Security. Language like this—which soon may be accompanied by policy changes—fosters a more permissive, “circle-the-wagons” culture. This, in turn, may increase the number of violent incidents and corruption cases, with grave effects for border security agencies’ credibility, reputation, and community relations.

Line agents at the border have an important job to do, and they face real risks. Whether through their unions or otherwise, they deserve to have a prominent voice in how their agency is run, as their on-the-ground experience is indispensable to decision-making. Nonetheless, in any military, intelligence, or law enforcement agency, it is a bad idea to give them veto power on priorities or strategy. Top management, which must take into account many more stakeholders and national interests, must be able to make independent decisions, and must have the liberty to say “no” to the rank and file when necessary.

It’s not clear that the CBP, Border Patrol, and ICE management will have this freedom, or choose to use it, during the Trump administration. We fear that the results will be measured in civil liberties violations, bribery cases, and perhaps even bodies.