CBP Put A Bunch Of Journalists, Immigration Lawyers, And Activists On A Secret Watchlist

from the fuck-the-Constitution-I-guess dept

Leaked documents obtained by an NBC affiliate show the government has taken a direct interest in journalists and activists covering the many, many happenings at our southern border. But the government isn't interested in keeping them safe or giving them the space to do their jobs. Nope, the CBP has been treating journalists like suspected criminals, hauling them in for hours of questioning and examining the contents of their phones and laptops.

Oh well. I guess the First Amendment had a good run.

Documents obtained by NBC 7 Investigates show the U.S. government created a secret database of activists, journalists, and social media influencers tied to the migrant caravan and in some cases, placed alerts on their passports.

[...]

One photojournalist said she was pulled into secondary inspections three times and asked questions about who she saw and photographed in Tijuana shelters. Another photojournalist said she spent 13 hours detained by Mexican authorities when she tried to cross the border into Mexico City. Eventually, she was denied entry into Mexico and sent back to the U.S.

The documents (which appear to be screenshots of the CBP database) show an extensive list of journalists and activists, along with notes stating whether or not the person was interviewed and/or placed on a CBP "alert" list. The surveillance of protected First Amendment activities is apparently part of the DHS's "Operation Secure Line," which monitored the caravan travelling through Mexico to the US border.

Here's who's on the list, according to NBC 7's investigation:

The individuals listed include ten journalists, seven of whom are U.S. citizens, a U.S. attorney, and 47 people from the U.S. and other countries, labeled as organizers, instigators or their roles “unknown.” The target list includes advocates from organizations like Border Angels and Pueblo Sin Frontera.

The CBP's first statement said this all just normal border-protecting stuff. According to its initial deflection, adding journalists and activists to watchlists that targeted them for enhanced screening and other unpleasantness is all part of the government's plan to address the multiple caravans headed for our borders. The CBP statement does not explain why targeting lawyers, activists, and journalists is considered an appropriate use of government resources. In fact, it doesn't attempt to address the database and its contents at all.

And it's not just secondary screenings and hours-long interviews of people engaging in protected speech. The DHS is apparently compiling entire dossiers about this group of targets -- none of which is suspected of participating in criminal behavior. According to a DHS source quoted in the article, the agency doesn't have the authority to compile information on people not suspected of criminal activity. As the unnamed person notes, DHS isn't an intelligence agency. It's a law enforcement agency.

CBP now appears to be in panic mode. An update added to the story indicates the agency is throwing any justification it can against the wall in hopes of something sticking.

Minutes after our story published and five days after a Customs and Border Protection spokesperson gave us the agency's statement above, CBP told our colleagues at NBC News that the names in the database are all people who were present during violence that broke out at the border in November. The agency also said journalists are being tracked so that the agency can learn more about what started that violence. CBP never clarified that point directly to NBC 7 Investigates.

Even this hasty course correction is a spectacular failure of logic. The CBP is investigating a confrontation at the border... by placing journalists, lawyers, and activists under surveillance? That makes no sense. The CBP can speak to these people without placing them on an alert list and subjecting them to enhanced screening and device searches. If the agency needs to interview witnesses, there are processes for that -- none of which look like an attempt to chill press freedom and pro-immigrant activism at the border.

Filed Under: activists, cbp, customs and border patrol, immigration, journalists, lawyers, watchlist

Court Says Arizona Residents Hassled By CBP Encroachment Can Move Forward With Their First Amendment Lawsuit

from the jackbooted-thugs-as-a-service dept

About a half-decade ago, Customs and Border Patrol turned roads in and out of a small Arizona town into East Germany. Now, the Ninth Circuit Appeals Court has ruled residents of Arivaca, Arizona can move forward with the civil rights lawsuit against several federal government agencies, including the DHS and CBP.

The backstory to the lawsuit is stunning, in a "surely this can't be happening in America" sort of way. The New York Times covered the misery of Arivaca residents back in 2014. It shows what can happen when the federal government is allowed to turn large swathes of American soil into a proto-DMZ with armed guards and "papers, please" checkpoints.

Every time Jack Driscoll drives the 32 miles from this remote outpost in southeastern Arizona to the closest supermarket, or to doctor’s appointments, or to a pharmacy to fill his prescriptions, he must stop at a Border Patrol checkpoint and answer the same question: “Are you a U.S. citizen?”

Sometimes, Border Patrol agents ask where he is going or coming from, the type of car he is driving, what is in that bag on the back seat or what brings him to these parts, even though he has lived here for more than a year.

[...]

He is not the only one in this community of 800 whose anger is boiling over. Although checkpoints are a fact of life here — the tollbooth-like way stations are part of the routine for anyone driving the highways near the border — citizens like Mr. Driscoll are now starting to raise questions about whether the familiar but irritating routine violates their constitutional rights, which include protections against arbitrary stops and searches.

Most residents of Arivaca have to leave town to do anything. The small town has few services, forcing residents to deal with the CBP every time they travel anywhere else. Surrounded by three roads with three checkpoints, residents have no option but to subject themselves to unneeded scrutiny, apparently in perpetuity. Despite the CBP's stranglehold on this particular border-adjacent area, no one who's dealt with CBP hassle for years has seen much in the way of border protection. And they would know, because they've been watching.

This year, volunteers organized, gathering hundreds of signatures and picketing outside the Border Patrol offices in Tucson to try to get the checkpoints removed, to no avail. For several months, small groups monitored the busiest of the area’s checkpoints, on Arivaca Road, noting things like the length of the stops, the questions asked and the number of drivers pulled aside for a search of their vehicle and belongings.

“We didn’t see any arrests,” said one of the volunteers, Peter Ragan, 52, a landscaper who has lived in Arivaca for 12 years. “There were no undocumented people apprehended at the checkpoint, no drugs interdicted, no murderers, rapists or terrorists we were defended against, as far as we could see.”

To be clear, none of these residents ever leave the country. All of this activity -- this constant monitoring of 800 residents of a small Arizona town -- targets US citizens going from place to place entirely within US borders. The pushback by residents was limited to monitoring CBP operations from public roads. No one interfered with the work being done by officers. All they did was watch, record, and protest the CBP activities.

The CBP didn't like this. It couldn't just tell residents to leave, however. That would have been too obvious of a Constitutional violation. Instead, the CBP did everything it could to deter citizens from documenting the agency's activities. From the appeals court decision [PDF]:

Some of them, as part of an organization called People Helping People (PHP), held a protest near the checkpoint area on December 8, 2013. The protest was spurred by community complaints that BP agents racially profiled, unlawfully searched, and used excessive force on people stopped at the checkpoint. The BP agent in charge of the checkpoint area learned of the planned protest and decided to suspend checkpoint operations during the protest, allegedly for the safety of all involved, which permitted cars to pass uninspected. On February 26, 2014, the Appellants and others returned to the checkpoint area to protest and to monitor activities within the checkpoint area. The protesters stood first on the south side of Arivaca Road, and later on the north side of the road, in each case approximately 100 feet east of the portable office. After the protesters refused to move further away from the checkpoint area, BP agents erected a yellow tape barrier across the north and south shoulders of Arivaca Road approximately 150 feet east of the portable office unit, and required the protesters to relocate behind those barriers.

First, there was the arbitrary decision by the CBP that moved protesters and observers back 50 feet, as though 100 feet wasn't far enough away for the CBP to do its work without interference. Anyone crossing the tape barrier was threatened with arrest.

Then there's the fact that the CBP only enforced this ad hoc barrier against protesters and observers.

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine “who can enter into the perimeter” and “where [Appellants] can and can’t be.” On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident’s wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted “Well, we had our fun today” to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, “It’s a free country.”

Is it? Sure doesn't seem like it when you're being asked about your citizenship several times a week and forced to stand behind an arbitrary barrier to even look at a CBP checkpoint.

Sometimes the tape barrier wasn't enough for the CBP. It also engaged in activities clearly aimed at preventing observation from behind the barriers.

On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone.

The residents sued (with the assistance of the ACLU), alleging First Amendment violations. The district court ruled in favor of the CBP, granting summary judgment before any discovery had occurred. It called the three CBP checkpoints (which were supposed to be temporary) "nonpublic forums" where citizens could be removed without violating their rights.

The Appeals Court calls this decision premature, stating that the plaintiffs have raised several issues which require discovery to proceed before they can be ruled on.

The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

This decision allows the residents of Arivaca to move forward with their lawsuit and start demanding records from the CBP. The first point of attack against the "nonpublic forum" argument begins with the CBP's own antagonistic actions. As the court notes, the inconsistent approach taken by the CBP in regards to its makeshift protester barriers raises a lot of questions about the supposed "neutral viewpoint" of the CBP's enforcement.

The government’s stated policy is that “pedestrians are allowed inside the checkpoint only for official purposes,” but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government’s policy.

Hopefully, this will result in a win for the plaintiffs. Their protests and documentation are the only way they can fight back against the CBP's inland encroachment. The continued observation will likely show the only purpose these checkpoints serve is to disrupt the lives of American citizens traveling entirely within the borders of the United States.

Filed Under: arivaca, arizona, cbp, checkpoints, civil rights, customs and border patrol, dhs, encroachment, first amendment

Proposed Bill Would Exempt Customs And Border Protection From FOIA Compliance [Updated]

from the who-needs-laws-when-you-operate-in-the-constitution-free-zone? dept

[Update: Thanks to reporting by the Tuscon Sentinel, Rep. Martha McSally has stripped this exemption from the bill and added language clarifying the law should not be construed as exempting CBP from its FOIA duties.]

To build a wall, you've got to break a few laws. That's the message being sent by a new bill, which helps pave the way for the eventual construction of a border wall by exempting the CBP and US Border Patrol from a large number of federal laws.

H.R. 3548 [PDF] would give the CBP a free pass to ignore all sorts of federal restrictions when engaging in its enforcement activities. All the things citizens can't legally do on federal land, the CBP and Border Patrol would be allowed to. This would keep the federal government from getting in its own way in the event wall construction actually takes place, as well as keep CBP agents from worrying about polluting, killing endangered species, or violating sacred grave sites while pursuing undocumented aliens.

The authority is so broad that CBP and its officers are given exemptions from the requirements of 36 different federal laws, including but not limited to, the National Environment Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Fish and Wildlife Act, the Eagle Protection Act, the Native American Graves and Repatriation Act, AND "Subchapter 5, and chapter 7 of title 5, United States Code (commonly known as the 'Administrative Procedure Act')."

The last one listed is why the American Society of News Editors is commenting on the bill. The Administrative Procedure Act covers federal FOIA law. If this goes through unaltered, it could easily be read to exempt the CBP and Border Patrol from responding to open records requests pertaining to their activities... pretty much everything these entities do. The bill covers everything from tactical infrastructure efforts to detainments to patrol efforts.

ASNE isn't quite sure what to make of this exemption being included, but knows there's no way the law should be passed with this part intact.

It's unclear whether this reading is accurate, or intended, but unless someone asks, we might not know until it is too late. Unfortunately, there has been little to no stated opposition to this bill, so it could very well pass the House Committee on Wednesday, and later the entire House, unchecked.

The risk of leaving this stone unturned is clear: The public and press would be in the dark with regard to CBP activities near the border. We wouldn't have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall.

It could have been a mistake with legislators wishing to exempt CBP from something else, but if it can be read as excusing ICE from its FOIA duties, you can be sure that's exactly how the agency will read it. Alerting representatives is the only way this will receive any attention, considering it's just a few words in the middle of a 102-page bill seeking expanded powers for the agency.

Filed Under: cbp, customs and border patrol, dhs, foia, transparency

Border Patrol Stops Journalist From Heading To Dakota Pipeline Protests, Searches All Of His Electronic Devices

from the border-town-of-Chilling-Effects,-USA dept

If you're having trouble quelling dissent at ground zero, maybe the next move is to limit the coverage. We've already seen local authorities issue arrest warrants for journalists covering the Dakota Access Pipeline protests. Now, we're seeing something more proactive, courtesy of Customs and Border Protection.

Award-winning Canadian photojournalist Ed Ou has had plenty of scary border experiences while reporting from the Middle East for the past decade. But his most disturbing encounter was with U.S. Customs and Border Protection last month, he said.

On Oct. 1, customs agents detained Ou for more than six hours and briefly confiscated his mobile phones and other reporting materials before denying him entry to the United States, according to Ou. He was on his way to cover the protest against the Dakota Access Pipeline on behalf of the Canadian Broadcast Corporation.

Welcome to the Constitution-Free Zone, Canadians! Whatever protections you might have on your side of the border matter just as little as the protections we have on our side. You have to travel ~100 miles inland before your rights are respected. For Ed Ou, this meant a lengthy detention and an attempted strip search of his electronics -- all before being told he wasn't going any further than the Canadian border. From the letter the ACLU sent to the CBP demanding a few answers [PDF]:

After Mr. Ou applied for admission to the United States at the Vancouver airport, he was redirected to secondary inspection, where he clearly identified himself as a journalist. CBP officers nonetheless detained him for more than six hours and subjected him to four separate rounds of intrusive interrogation. The officers questioned him at length about his work as a journalist and his prior professional travel in the Middle East. They also questioned him extensively about dissidents and “extremists” whom he had encountered or interviewed as a journalist. Mr. Ou answered the agents’ questions fully and forthrightly and explained many times that he was a journalist whose credentials and background could be verified easily. The officers declined to inspect his press credentials.

CBP officers also conducted an unduly intrusive search of Mr. Ou’s belongings. In the course of this search, they made photocopies of his personal papers, including of pages from his handwritten personal diary. They also confiscated, examined, and searched—or at least attempted to search—his mobile phones. The CBP officers asked Mr. Ou to unlock the three mobile phones he carries to enable him to communicate in different locations worldwide. When Mr. Ou declined with an apology, citing his ethical obligation as a journalist to protect his newsgathering materials, including his confidential sources, the officers removed the phones from Mr. Ou’s presence. When the officers returned the phones to him several hours later, it was evident that their SIM cards had been temporarily removed because tamper tape covering the cards had been destroyed or altered.

The CBP's statement in response to journalists' questions is nothing more than the expected assertion that these actions were all within its rights. As it points out, anyone arriving in the US is subject to additional searches, which can encompass the contents of their electronic devices. The CBP generally has to have an articulable reason (but not anything rising to the level of "suspicion") to do this, but a large majority of these intrusive searches go unchallenged and chanting "national security" -- as the CBP does here -- tends to make most complaints evaporate.

“Keeping America safe and enforcing our nation's laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S.,” the statement said.

The CBP, however, seems less sure of its reasons for detaining the photojournalist. One agent said Ou was a "person of interest" wanted by an unnamed law enforcement agency, while another said his "person of interest" status had nothing to do with his detainment. That same officer also told Ou that his refusal to unlock his phones wasn't going to help convince the CBP that he should be let into the country.

It did, however, scare up some paperwork citing a nonexistent legal authority for its refusal to admit him into the US.

The officers did provide Mr. Ou with a Form I-275 Withdrawal of Application for Admission stating that he had been found inadmissible pursuant to Section 212(a)(7)(A)(I)(I) of the Immigration and Nationality Act (“INA”). However, that is not a valid citation to the INA; indeed, the cited subsection does not exist. Section 212(a)(7)(A), moreover, pertains to those who seek admission as “immigrants”—persons intending to reside permanently in the United States. Mr. Ou plainly was not seeking admission as an “immigrant,” and neither the Form I-275 nor the questions the CBP officers asked Mr. Ou suggested any basis for concluding otherwise.

The ACLU's letter goes on to point out that the CBP now has copies of data it perhaps acquired illegally and should make an immediate effort to destroy/purge anything it collected during its chilling little fishing expedition. It also asks that the CBP cough up the real reason it decided to detain Ou and search his devices, considering those performing the search couldn't be bothered to come up with a coherent legal theory or an applicable statute to justify the intrusion.

This Constitutionless free-for-all at the borders is already a concern for US citizens, especially as the term "border" includes anything 100 miles inland. It's even more of a concern for journalists -- whether US citizens or not -- who can be prevented from covering controversial events for apparently wholly imaginary reasons.

Filed Under: cbp, customs and border patrol, dakota pipeline, ed ou, free speech, journalism, protests

Wall Street Journal Reporter Hassled At LA Airport; Successfully Prevents DHS From Searching Her Phones

from the the-government-will-abuse-your-rights-as-far-as-you'll-let-it dept

Welcome to Bordertown, USA. Population: 200 million. Expect occasional temporary population increases from travelers arriving from other countries. Your rights as a US citizen are indeterminate within 100 miles of US borders. They may be respected. They may be ignored. But courts have decided that the "right" to do national security stuff -- as useless as most its efforts are -- trumps the rights of US citizens.

Wall Street Journal reporter Maria Abi-Habib - a US-born citizen traveling into the States with her valid passport -- discovered this at the Los Angeles International Airport. Her Facebook post describes her interaction with DHS agents who suddenly decided they needed to detain her and seize her electronics.

The DHS agent went on to say she was there to help me navigate immigration because I am a journalist with The Wall Street Journal and have traveled to many dangerous places that are on the US' radar for terrorism.

It's generally a good idea to be wary when government employees suddenly offers to "help."

But after pushing me to the front of a very long line at immigration, she then escorted me to the luggage belt, where I collected my suitcase, and then she took me to a special section of LAX airport. Another customs agent joined her at that point and they grilled me for an hour - asking me about the years I lived in the US, when I moved to Beirut and why, who lives at my in-laws' house in LA and numbers for the groom and bride whose wedding I was attending.

Abi-Habib was very cooperative. She answered all of the agent's questions and remained calm despite this interaction being far from ordinary. It didn't matter. The DHS decided to flex its "our border, our rules" muscle.

[T]hen she asked me for my two cellphones. I asked her what she wanted from them.

"We want to collect information" she said, refusing to specify what kind.

"Collect information." That's intrusion and surveillance that serves no discernible purpose. The DHS was obviously hoping Abi-Habib would remain as cooperative as she had during the previous questioning. But Abi-Habib disappointed the DHS agent by suggesting she should talk to the phones' owner about her search plans, rather than just hope a lengthy, suspicionless detention would prompt Abi-Habib to relinquish consent.

"You'll have to call The Wall Street Journal's lawyers, as those phones are the property of WSJ," I told her, calmly.

She accused me of hindering the investigation - a dangerous accusation as at that point, they can use force. I put my hands up and said I'd done nothing but be cooperative, but when it comes to my phones, she would have to call WSJ's lawyers.

She said she had to speak to her supervisor about my lack of cooperation and would return.

Obstruction is an actual crime. This wasn't an empty threat. I mean, it was an empty threat in the way that government officials hand out threats they have no intention of following through with as a means of coercion, but it was not empty as in "without enforceable consequences." It was meant to make Abi-Habib more receptive to granting the DHS permission to search the phones. But behind the threat is an actual criminal statute that could have turned this from a detention to an arrest. And all because the DHS didn't want to obtain consent for its search from the phones' actual owner.

Abi-Habib called the DHS agent's bluff. The DHS relented.

The female officer returned 30 minutes later and said I was free to go.

Abi-Habib's post closes by noting she doesn't fit any terrorism profile and offers security tips for those traveling in and out of the US -- like leaving everything behind that could be searched/seized, or travel with a recently-wiped phone.

The DHS's actions here are disturbing. It suggests agents dig through devices on a regular basis, even when there's a complete lack of suspicion. Laws and court rulings confirm there is a lowered expectation of privacy at US borders, but the agency's refusal to follow through with a search of the devices makes it clear agents are looking to hassle people they think won't fight back -- either during the detention, or after the fact with lawsuits and/or public discussions of their treatment. It's incidents like these that show many public security efforts by government agencies are almost entirely ornamental. It's the illusion of security, rather than an actual protective effort. Border agents dig around in people's stuff just because they can, not because they need to.

Filed Under: cbp, customs and border patrol, journalism, maria abi-habib, phones, searches
Companies: wall street journal

DHS Wants Travelers Entering The US To Include Their Social Media Handles... Just Because

from the maybe-they-want-to-be-friends dept

Late last week, a proposal from the Department of Homeland Security was published in the Federal Register concerning forms tourists need to fill out upon entering the US. Specifically, DHS proposed adding the following to Form I-94W, which is the Nonimmigrant Visa Waiver Arrival/Departure Record:

“Please enter information associated with your online presence—Provider/Platform—Social media identifier.”

Why? Well, it's pretty much exactly as you guessed:

It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

In other words, if you're following ISIS accounts on Twitter, DHS might not let you into the US. And sure, it's voluntary, but it looks like some in Congress are already saying that this sort of thing ought to be mandatory. Of course, for the vast majority of people, their social media profiles are going to be pretty boring for your average Customs and Border Patrol agent, but do we really think it's a good use of their time to be trolling through their Facebook and Twitter feeds or Instagram and Pinterest images?

Overall, this seems like a typical kneejerk response to various concerns about letting people with ill-intent into the country. Eventually, someone travelling here on a tourist visa will do something horrendous, and people will look at who was friends with that person on Twitter or Facebook and freak out. But the idea that the government should be asking travelers for their social media info feels fairly intrusive. What people say on social media or who they're connected with seems likely to be a pretty poor indicator of whether or not they're coming to the US to blow stuff up.

Filed Under: cbp, customs and border patrol, dhs, social media, tourist visa

Customs Agents, Local Doctor Subject 18-Year-Old To Vaginal, Rectal Probing In Search Of Nonexistent Drugs

from the CBP-demands-development-of-additional-orifices-to-violate dept

The Constitution-free buffer zone near our nation's borders ensures those who wander too far away from the center of our country will be robbed of their rights, thanks to ongoing wars vs. drugs and terrorism. They may also be robbed of their dignity.

There's apparently very little law enforcement personnel won't do when in pursuit of drugs. The gloves come off, only to be replaced with other gloves, which are then forcefully inserted into every orifice on a "suspect's" body. We saw this happen to New Mexico native David Eckert back in 2013. The list of invasions and indignities perpetrated on him by the Deming police and a far-too-compliant "medical professional" is long, ugly and comprehensive.

1. Eckert's abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

The police obtained no drugs, but Eckert obtained a $1.6 million settlement.

Perhaps that sort of payoff is in 18-year-old Ashley Cervantes' future. Cervantes did nothing more than cross the border to eat breakfast in Nogales, Mexico. Upon her return, things went from bad to worse to nightmarish. [via Cyrus Farivar, Ars Technica]

The litany of abuses inflicted on her during a 7-hour search for nonexistent drugs mirrors that of Eckert's. From the lawsuit [PDF]:

The CBP Agent became more aggressive in his questions and accusations. That CBP Agent directed Ashley to follow him to a “detention” room, ostensibly for additional questioning. Over the course of the next few hours, Ashley:

a. was handcuffed to a chair;

b. had a number of CBP K9’s sniff her person (a violation of CBP policy, which prohibits the use of K9’s on a person); and,

c. was taken into a separate room, patted down, and asked to squat so female investigators could visually inspect her.

At no point was Cervantes advised of her Miranda rights, because forget it, Jake, it's Bordertown. The CBP's inability to locate the drugs the agent fervently believed Cervantes was smuggling into the country didn't result in the conclusion of the search. Instead, efforts escalated under the theory that Cervantes was just particularly skilled in the art of concealing drugs.

First, the CBP agent deployed his own questionable medical skills to fill out a "Treatment Authorization Request." In this Immigration Health Services' form, the agent "diagnosed" Cervantes as a "potential internal carrier of foreign substances" and ordered up an X-ray. Cervantes was placed in a CBP van and taken to Holy Cross Hospital, where an all-too-willing accomplice was found in the form of Dr. Patrick F. Martinez. Once there, more questionable paperwork was completed by those involved.

The Holy Cross records from Ashley’s time at the facility include a number of factual inaccuracies, including inaccurately setting out that Ashley was accompanied by her mother and arrived in a private vehicle. In reality, Ashley was transported in a CBP vehicle. Her handcuffs were not removed until she changed into a hospital gown for the alleged purpose of undergoing an X-Ray.

Cervantes never underwent an X-ray. Instead, she underwent a series of non-consensual penetrations -- something most people refer to as "rape."

Dr. Martinez, a male physician, entered Ashley’s room and, after asking a few cursory questions, brutally invaded her body on a warrantless and unjustified search for contraband.

Dr. Martinez forcefully and digitally probed Ashley’s vagina and anus.

Ashley had never before been to a gynecologist and, for the remainder of her life, will always remember that her first pelvic and rectal exams were under the most inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil.

[...]

The searches conducted by the CBP Agents, Holy Cross and Dr. Martinez injured Ashley physically, mentally and emotionally. Her labia, vaginal opening, and anus were left raw and sore and she felt violated, demeaned and powerless as a result of the searches.

Seven hours. No drugs. Multiple penetrations. No warrants. No consent. And all of this will likely be OK -- or at least not enough to leap the "qualified immunity" hurdle.

The courts have frequently held that the Fourth Amendment is nothing to get too concerned about near our nation's borders, what with drugs and terrorism on the loose. If the courts find it acceptable for the CBP to seize laptops and other devices and search them without a warrant, it stands to reason they'll probably find seizing and searching the lower half of a human being without probable cause to be just one of those things that happen in service of the public's "best interest."

Filed Under: 4th amendment, ashley cervantes, borders, cbp, customs and border patrol, searches

Lawsuit: CBP Took $240,000 From Man And Refused To Respond To His Forfeiture Challenge Until It Had Already Processed It

from the because-barely-any-due-process-is-far-too-much-due-process dept

Looks like someone might be getting their money back after CBP agents -- operating a great distance from the US borders -- seized $240,000 from a man traveling through Indiana. While driving along I-70 outside of Indianapolis last November, Najeh Muhana was pulled over for not signalling a lane change. That's when things got weird and a bit unconstitutional.

According to his filing for return of his money, Muhana's vehicle was searched "without consent, warrant or probable cause." The Hancock County Sheriff's Department officers even brought a drug dog to the scene, but failed to uncover any contraband. The $240,000 Muhana was carrying caught their eye, though.

Muhana (correctly) intuited the officers wanted to take his money. So he told them he had just been talking to the person the money was owed to. This story, which was untrue, seemed to upset the officers, who spent the next hour discussing something presumably related to how they could take the cash from Muhana -- because that is exactly what they eventually did.

This decision was made when CBP agent Scott Thompson -- operating roughly 250 miles from the nearest border -- arrived on the scene. Thompson took the money and gave Muhana a "receipt for property." Muhana, whose native language is Arabic, took this to mean the money would be returned when the CBP finished its investigation into whatever it was it thought was going on here.

Shortly after that, the Sheriff's Department took Muhana into custody based on a traffic stop that had occurred four months earlier in another state. Details on that arrest suggest Muhana may have been involved in selling unlicensed cigarettes.

Najeh Muhana, 39, St. Louis, was preliminarily charged with possession of untaxed cigarettes, according to a Henry County Jail List.

Muhana’s charges stem from an incident that initially began on I-70 in July when members of the Pro Active Criminal Enforcement Team pulled over his rental van for unsafe lane movement. Blankets covered the cargo area and police confiscated 2,400 cartons of Newport cigarettes, valued at more than $147,000, and 650 cans of infant formula, valued at $10,500.

The cigarettes had a Missouri tax stamp, said Major Jay Davis of the Henry County Sheriff’s Department, noting that in Indiana, it is illegal to possess such items without an Indiana tax stamp.

During this stop -- which occurred in November -- officers uncovered nothing more than cash. They may have believed the two were related, but they never bothered connecting the dots for the benefit of Muhana, much less used it as a basis for the cash seizure.

In fact, all the involved agencies did was pass the buck -- along with Muhana's bucks -- whenever he sought information on how to work towards the return of his money. The filing details multiple attempts to obtain any confirmation on the forfeiture, or who he should speak to in order to get the process underway. Further, there's no record that Muhana was ever notified of the CBP's intent to pursue forfeiture -- nothing beyond the mysterious "receipt for property" the CBP agent gave him.

Muhana began making inquiries a few weeks after the money was taken, beginning in December 2015. In January, CBP agent Scott Thompson told him the case had been turned over to the CBP's Ohio office. The following Kafka-esque chain of events is directly from the filing.

On or before January 19, 2016, Mr. Muhana's counsel contacted Eartha Graham, Paralegal Specialist, U.S. Customs and Border Protection in Middleburg, Ohio regarding the status of the Currency.

On January 19, 2016, Ms. Graham responded via email to counsel, stating, "I will need something in writing preferably on company letterhead stating you are representing Mr. Muhana asap."

[...]

On January 20, 2016, counsel followed up with a facsimile to Ms. Graham, in writing,

In response to your email to me yesterday, this will confirm that I represent Najeh Mulhana relating to the seizure of three (3) bags of currency by the US. Customs Service on or about November 6, 2015, in Indiana. The seizing officer was Special Agent Thompson. Mr. Muhana is requesting return of the money.

On January 26, 2016, counsel again contacted Ms. Graham related to the Currency, asking, "Will the agency be sending me some notification regarding its intentions relating to the seized money?" She responded, "Yes, we will be sending something out soon."

On February 1, 2016, Ms. Graham followed up again with an email to counsel stating, "I just received word from our counsel to request a written statement sign (sic) by Mr. Muhana, stating you will be representing him for currency case." The same day, Mr. Muhana's counsel sent Ms. Graham an email with a copy of the law firm's engagement letter attached.

On February 8, 2016, counsel received a letter from Tessie Douglas, FP&F Officer, US. Customs and Border Protection, Middleburg, Ohio, dated February 4, 2016. In the letter Ms. Douglas stated,

This is with reference to your inquiry on behalf of your client Mr. Najehm Muhana, about the currency that was seized on November 6, 2015.

The circumstances of this case have been reviewed. It has been determined that since your client waived his rights to the currency by signing the abandonment form, he cannot make claims on the currency. The forfeiture process was completed on February 1, 2016.

The next day, Muhana's lawyer wrote back, pointing out several things. First, he had received nothing in the way of a signed waiver by Mr. Muhana indicating his relinquishment of ownership. Furthermore, even if Muhana had signed something of that sort during the arrest, he is unable to read or write in English and may not have known what he was signing. In addition, even if such a signed waiver exists, there's nothing forbidding Muhana from attempting to correct his mistake during the time between the seizure and its finalization. Muhana's attorney demanded the CBP provide him with a copy of the supposed waiver.

A reasonable request, one would think, especially when a quarter of a million dollars was on the line. But guess what? The CBP doesn't turn over that sort of paperwork to people it's taking money from. It will only turn that paperwork over to anyone who asks for it using a completely unrelated process. And that's only if it decides it isn't covered by multiple investigation-related exemptions. Behold: your tax dollars at work, giving you the finger over its cubicle wall.

There was no response until March 7, 2016. This time, counsel received an email from Rose Parks, Paralegal Specialist, U.S. Customs and Border Protection, Cleveland, which stated as follows:

The subject-referenced case has been re-assigned to me, as Ms. Graham has left our department. Per my supervisors, we do not provide copies of abandonment forms. To obtain a copy of the form, you would need to file a FOIA request.

Muhana's lawyer fired right back, hoping to find someone willing to provide more info on the up-to-this-point nonexistent waiver.

Ms. Parks:

Thank you for your message. Please confirm that the Agency has referred this matter to the US Attorneys' Office per my prior email for determination regarding forfeiture. Again, my client is making claim to the money. I understood from my conversations with Ms. Graham that the case had been re-assigned to the US Attorney for that purpose. If I have misunderstood her, please let me know immediately.

Nothing there for Mr. Muhana either.

Ms. Parks then stated as follows in her follow-up response: "The currency has been forfeited and the case is closed. No referral is being made."

The money is gone, apparently, after having skipped some necessary intermediate steps. As the filing points out, the government must notify involved parties of the intent to pursue a forfeiture. This is to give people like Najeh Muhana a very slim window in which to raise a challenge. Muhana's lawyer says that -- contrary to the law -- he was never given written notice of the agency's intentions.

The agency claims (sort of) that it had no obligation to do so because Muhana had disclaimed his ownership of it. But the chain of communications clearly show Muhana had both claimed ownership and was interested in pursuing its recovery. The agent directly involved with the seizure was made aware of this in December 2015, less than a month after the funds were taken. The agency itself was notified in writing of Muhana's intent to challenge in January 2016 -- well before the agency's February 1st declaration that the money had been forfeited.

As Muhana's lawyer points out, this is clearly bullshit.

Here, the Agency knew that Mr. Muhana was claiming to be the owner of the Currency through the repeated inquiries of his counsel. Rather than acknowledge those inquiries and respond to them, the Agency delayed any response until after February 1, 2016, when it unilaterally declared a forfeiture of the Currency. Thus, despite actual knowledge that Mr. Muhana was the owner of the Currency, the Agency refused to provide written notice to him about the Currency being seized and the Agency's intention to declare a forfeiture.

Given what's detailed here, it strongly appears as though the CBP processed a forfeiture while skipping past all the due process niceties. If so, Muhana is likely to not only prevail, but "strongly prevail" in his claim against the agency, which means it will not only have to give him back his $240,000 but pay his legal fees as well.

Filed Under: asset forfeiture, cbp, customs and border patrol, doj, hancock county, najeh muhana

Judge Tosses 16 Kilos Of Meth Because CBP Couldn't Be Bothered To Obtain Consent For Its X-Ray Search

from the for-the-lack-of-a-warrant,-the-drug-bust-was-lost dept

I guess if you're going to engage in a stupid, neverending "war," the most honest way to approach it is stupidly.

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

Filed Under: 4th amendment, cbp, consent, customs, customs and border patrol, meth, search

Report Says Customs And Border Protection Shoved 12,000 Unanswered FOIA Requests Into Boxes And Forgot About Them

from the your-tax-dollars-hardly-working dept

The Government Accountability Office has taken a look at the DHS and its handling of FOIA requests, and it doesn't like what it sees. There are plenty of numbers in the report but the most incredible number is this: 23,000 FOIA requests mishandled by a single agency under the DHS's control. [pdf link]

Nonetheless, CBP experienced a large increase in the number of its backlogged requests from fiscal year 2011 through fiscal year 2013—from 4,356 requests to 37,848 requests. According to CBP officials, two problems, in particular, contributed to the higher numbers. First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system. The officials stated that CBP subsequently cleared all of these requests.

Unfortunately, the report doesn't contain any further details on how these events occurred. The preceding paragraph notes that the CBP has taken steps (hiring/training additional staff, extending agreement with USCIS to handle FOIA processing) to tackle its backlog of requests, but there's nothing explaining how 11,000 requests were "improperly closed" or how 12,000 requests managed to bypass the FOIA system completely, only to reappear in a stack of boxes located elsewhere.

Part of the problem seems to be the DHS itself. The agency is supposed to be fixing its lousy FOIA response system, which includes every agency under its oversight. But the DHS is too big to do the job properly. When it was formed in 2003, the DHS assumed control of 22 agencies and offices as well as absorbed 209,000 federal employees. By 2014, this had grown to 28 agencies and offices.

The GAO pointed out serious flaws in the agency's FOIA processes since 2008, along with handing down several recommendations. Most of that has been ignored or implemented badly. (Pretty much par for the course for an agency another GAO report bluntly stated "had no project management skills.") For the most part, the "solution" has been to throw warm bodies at the request backlog. In a better system, this might have worked. But the DHS's underling agencies seem to all have different ideas as to what tracking and response system works best, resulting in a snarled "network" of responders that creates more problems than it solves.

Responsibility for processing FOIA requests is decentralized among DHS’s Privacy Office and component agencies...In addition, each of the selected components has its own program and procedures for processing, tracking, and reporting FOIA activities... Further, while the selected components report their FOIA processing costs to the Privacy Office, which then aggregates this data, these reported costs are incomplete, thus hindering accountability for the total costs incurred by the department and the components in managing and processing FOIA requests. Also, duplication exists in the processing of certain requests for immigrant files that are handled by two of the selected components.

This table highlights part of the problem:


Only half of the six agencies are using the same system. ICE is using FileMaker Pro in addition to using FOIAXpress, partially nullifying the interconnectedness of the system it shares with two other agencies. The Coast Guard is using nothing more than off-the-shelf Excel to handle its FOIA requests.

Because of the disparate methods and lack of interagency connectivity, the GAO notes that it is unable to provide a completely accurate picture of the DHS's FOIA processes, both in terms of backlogs and costs incurred.

Due to the non-reporting of particular cost categories and concerns about the accuracy of certain reported cost data, including data with obvious errors and inconsistent accounts of how data were collected, we concluded that, overall, the cost data provided were not sufficiently reliable, based on federal management cost accounting standards, to determine DHS’s total FOIA costs, but that our analysis allowed us to conclude that overall costs were underreported...

In examining reported data on the volumes of FOIA requests made to DHS, we found two data reliability issues of concern. First, we found that a FOIA request may be recorded and counted more than once… Similarly, a request sent to more than one component may be entered separately by each component that responds. Nonetheless, while this double counting may result in an inaccurate number of total requests received by DHS, it did not affect our findings, since we have no findings related to the overall volume of requests handled by DHS.

When it's all said and done, the DHS accounts for nearly half of the government's 95,000-request backlog. Part of it is due to its size, which encompasses some agencies (CBP, ICE) many Americans are seeking more and more information from. But the rest of it is on the DHS itself, which has been informed of its deficiencies since 2008, but has made very little forward progress.

Filed Under: cbp, customs and border patrol, dhs, foia