Investigation: CBP Targeted Journalists, Illegally Shared Info With Mexico, And Attempted To Cover It All Up

from the bad-apples-floating-to-the-top-of-the-barrel dept

A couple of years ago, documents surfaced that showed the CBP was placing journalists, activists, and immigration lawyers on some form of a watchlist, which would allow agents and officers to subject these targets to additional scrutiny when they crossed the border. There were obvious civil liberties implications, ones the CBP seemed largely unconcerned about.

The targeting appeared to be related to the "migrant caravan" that reached the border late in 2018 and performed a mass "incursion" on January 1, 2019. The CBP claimed it had only targeted those people because they had been involved in "violence" near the border late in 2018. It refused to explain what it meant by the word "involved" or how that was enough to ignore First Amendment protections. Nor did it explain why it was deliberately targeting US citizens not suspected to have been involved in any criminal activity. It also did not explain why it shared information on these targets with the government of Mexico, which then assisted in spying on this group of lawyers, journalists, and activists.

The DHS Inspector General opened an investigation [PDF] of these actions. And it has arrived at the conclusion that this all looks pretty bad, but wasn't actually illegal. Read into that what you will.

We did not find that CBP placed lookouts to retaliate against U.S. citizens for performing lawful work related to the migrant caravan. To the contrary, witnesses told us, and contemporaneous emails and documents corroborated, CBP placed lookouts to gain information about suspected illegal activity and then generally sought information consistent with that purpose during the resulting interviews. Although we determined CBP’s lookouts on a number of journalists present at an illegal border crossing were unnecessary, we found no evidence that CBP placed these lookouts to harass the journalists.

But that lead paragraph is misleading. The only thing that still works in context of the rest of the report is "found no evidence."

What this report details is stuff that looks like targeted harassment of individuals -- some of them journalists -- by CBP personnel. And yet, the IG is unwilling -- despite apparent lies from interviewed personnel and deliberate destruction of communications -- to call this what it is: a violation of people's rights for reasons the CBP is unwilling to discuss and actively worked to cover up.

It appears one person was more involved in targeting journalists than anyone else during this time period. This person has also been cleared of wrongdoing by this investigation.

Although we found no evidence in emails or interviews that the EOC [Emergency Operations Center] official who placed these lookouts (EOC Official 1) did so to harass the journalists or for any other ulterior reasons, his subsequent actions, or lack thereof, demonstrate he did not need to place the lookouts.

However, it's hard to believe this official did not order up these lookouts to "harass" journalists or "for any other ulterior reason." There was a stated purpose for these lookouts but this official never bothered to check back in after nominating the targeted journalists for additional harassment by CBP officers.

In one incident, Mexican police identified five American journalists after CBP officials alerted them that CBP officials observed members of the media helping migrants climb a border fence. EOC Official 1 then placed lookouts on the five journalists. The lookouts did not mention the illegal crossing but instructed interviewing officers where to find information about the journalists.

Although EOC Official 1 told us the purpose of these lookouts was to determine whether the journalists had information about the incident, his actions show he actually had no interest in that information. Over the following weeks, all five journalists came back to the United States, and CBP referred them to secondary inspection. Interview records reflect that none of the five journalists were asked about the illegal crossing. In fact, the journalists returned to the United States at various places and times and were therefore interviewed by several different officers. None of the officers asked about the illegal crossing.

It really, really looks like this official just thought it would be fun to subject journalists to secondary screenings.

EOC Official 1 placed more caravan-related lookouts than anyone else and was in regular contact with the TTRT throughout Operation Secure Line. If he wanted to know whether the journalists had information about this incident or other illegal border crossings, he knew how to contact the TTRT. Additionally, EOC Official 1 removed one of the lookouts after the journalist’s third interview, even though according to the interview record, CBP never asked the journalist about the illegal border crossing. If EOC Official 1 no longer needed information about the illegal border crossing at that point, then he also did not need the information when he placed the lookout 9 days earlier.

That wasn't the only case of inappropriate or unjustified targeting. There were more cases, something the system used by the CBP (TECS) appears to allow even though the policy and CBP statements claim that it doesn't.

CBP may place lookouts “only if illegal activity is suspected. The system will not allow a user to indicate that a ‘non-suspect’ is on ‘lookout.’” This last sentence has two possible interpretations. It could mean officials may place lookouts only on people who are suspects of illegal activity, and not on non-suspects; or it could be a description of how the TECS system works.

The footnote to this paragraph makes it clear this is not how the TECS system works:

While the TECS Directive says CBP may place lookouts only when illegal activity is suspected, it allows CBP to create “TECS records” or “TECS subject records” even when there is no suspicion of illegal activity.

This means a lot of lookouts had no direct connection to suspected criminal activity.

Nearly half of the caravan-related lookouts (25 out of 51) were on people for whom there was no evidence of direct involvement in illegal activity. Instead, those lookouts were based solely on the individuals’ associations with other people who were suspected of illegal activity.

Some links were stronger than others. Some "associations," however, were nearly nonexistent.

In one instance, a CBP official placed lookouts on two attorneys who previously crossed the border with someone who was believed to be an administrator of a caravan-related online chat group on WhatsApp. In another example, after a suspected migrant caravan organizer was seen riding in a vehicle, the EOC placed lookouts not only on the owner of that vehicle but also on someone who crossed the border with the vehicle owner one time, 9 months earlier, well before the migrant caravan started traveling towards the United States.

Almost anything can trigger a lookout. And one official (EOC Official 1) was more trigger-happy than most. This official -- who nominated the most journalists -- also refused to remove people from the lookout list when it became obvious they weren't connected to criminal activity and did not need to be subjected to additional screening when crossing borders. What this person did do, apparently, was lie to IG investigators.

EOC Official 1, who was primarily responsible for placing caravan-related lookouts at the EOC, also told us that many U.S. citizens did not need to be interviewed multiple times. Accordingly, EOC Official 1 claimed he went into TECS and removed caravan-related lookouts after individuals were interviewed, but review of TECS data revealed that EOC Official 1 did not remove any of his lookouts on U.S. citizens following their first border crossings. When presented with this information, he maintained that he tried to remove many lookouts and speculated that a technical glitch may have prevented that from happening, but we confirmed that no such glitch occurred. Instead, the evidence demonstrates that EOC Official 1 did not try to remove 18 of his 20 lookouts that resulted in secondary inspections.

Basically, this one official -- who the IG says did not target journalists for "improper" reasons -- targeted a bunch of journalists until it became too much of an embarrassment to ignore.

In fact, EOC Official 1 did not reevaluate or remove his lookouts when he finished his EOC detail at the end of January 2019. Instead, he and his supervisor transferred at least 31 caravan-related lookouts to other EOC personnel without giving any notice or instruction. One official who inherited several of those lookouts stated he did not even learn he was assigned to those lookouts until CBP officers contacted him as they were about to interview the individuals. He recalled that one of the first times this happened, he reached out to EOC Official 1, who originally placed the lookout. EOC Official 1 told him the lookout was no longer necessary, even though he had transferred it to him just days earlier. Still, after this discovery, the EOC did not systematically review the remaining lookouts. Instead, the lookouts remained in place for 2 more weeks, until a media story calling attention to the lookouts spurred the EOC to review and remove 18 caravan-related lookouts it determined were no longer necessary.

In the end, there's no complete absolution for this official. But neither is there any recommendation to discipline this person for using the lookout process as a form of harassment, something the IG report asks readers to infer from paragraphs like these:

Based on our review of all available evidence, we were unable to determine why CBP did not remove unnecessary caravan-related lookouts. We found no direct evidence that CBP kept lookouts active to harass, intimidate, or retaliate against caravan associates. However, EOC Official 1’s vague explanation for not removing lookouts, and the EOC’s disinterest in the repeat interviews, suggest it may not have been entirely accidental. Regardless of whether the EOC intended to punish or dissuade U.S. citizens from traveling between Mexico and the United States, subjecting them to repeated unnecessary inspections can have that effect, as the individual who was referred to secondary inspection four times explained.

Outside of this particularly problematic official, there were other signs the CBP used the lookout list as a way to make things difficult for people officers didn't like.

We found that, in December 2018, a CBP official asked Mexico to deny entry to 14 U.S. citizens affiliated with the migrant caravan, including one individual who was subsequently denied entry into Mexico. CBP may restrict Americans’ rights to travel internationally in certain circumstances, but CBP could not articulate any genuine basis for sending this request and in fact later admitted that the reasons provided to Mexico were not true.

And if the IG didn't find any communications indicating these nominations were done for improper reasons, it's probably because any communications pertaining to possibly illegal targeting were never memorialized, so to speak.

We found that on eight other occasions, CBP officials improperly sent Mexico the names and sensitive information of dozens of additional U.S. citizens, and some of those individuals were later denied entry into Mexico. However, because these CBP officials did not comply with CBP policies on sharing information with foreign entities and did not retain communication records, we cannot determine whether the officials asked Mexico to deny entry to those Americans.

It's harassment.

FOB Official 1 could not offer any reasons to us for asking Mexico to deny entry to the 24 individuals listed in his email. He could not recall anything about most of the 24 individuals, other than he did not think they were involved in illegal activity. In fact, FOB Official 1 initially denied that he ever asked Mexico to reject any individuals and insisted he did not remember this email until we showed it to him. FOB Official 1’s concerns about the 24 individuals could not have been particularly serious, because when we interviewed him, he could not recall what the concerns were or why they prompted him to ask Mexico to deny entry to those individuals, even though he said this was the first and only time he ever sent such a request.

And it was covered up.

Also, in January 2019 another FOB official (FOB Official 3) used his official CBP email account to send unencrypted SPII of six U.S. citizens to a Mexican intelligence official’s Yahoo email address. FOB Official 3 told us he sent the email so the Mexican official could provide information to help prevent a “very serious” threat from occurring. Yet, FOB Official 3’s email does not request any information from the Mexican official, and instead of mentioning a future threat, the email says the six individuals may have been involved in a past event. We were unable to clarify this inconsistency or determine the true reason FOB Official 3 sent this email, because he admitted deleting contemporaneous WhatsApp messages with this Mexican official.

More on the coverup, including the use of WhatsApp as a tool for opacity.

The CBP officials’ inability to recall key details about their communications with Mexican officials, or in some cases, whether they even shared information about U.S. citizens with Mexican officials, raises questions about whether there were other instances of Mexican and CBP officials’ sharing information about American caravan associates. Complete WhatsApp records would have shown whether CBP officials shared U.S. citizens’ SPII with Mexico on other occasions.

The fact that none of these officials retained their WhatsApp messages, and the various ways in which that happened, highlights the challenges of satisfactorily upholding recordkeeping responsibilities when CBP employees use WhatsApp. This is particularly troubling given the widespread use of WhatsApp during Operation Secure Line. Numerous CBP officials, across various offices, regularly used WhatsApp to communicate both with individuals and in various WhatsApp groups, some of which contained up to hundreds of U.S. and Mexican officials. Yet, these officials did not consistently retain their WhatsApp messages or copy or forward them to their official CBP accounts.

At the end of all of this, there are recommendations to clarify policy and better document lookout nominations and interviews. Nowhere in the report are there recommendations to punish anyone involved in this or forbid the use of self-destructing communications to preemptively erase evidence of misconduct or rights violations. So, unless the CBP is willing to step up and discipline those involved in this targeting, it will happen again and again and again. And since we can count on the CBP to take a hands-off approach to internal oversight, we can expect history to repeat itself.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, activists, cbp, immigration, journalists, lawyers, retaliation, surveillance, watchlist