Who Is Watching the Border Patrol?

Suddenly the Border Patrol appears to presume it can bypass Constitutional commonsense by attempting to normalize its surprising presence at lawful protests by Americans in Washington, D.C. It does so at the potential loss of our First and Fourth Amendment rights.

The Numbers
Placed under the humongous umbrella of the Department of Homeland Security in 2003, the Border Patrol now has about 20,000 federal officers and agents, not counting agents and officers in additional supplementary roles. This compares to 4,000 BP officers and agents as recently as the 1990s. U.S. Customs currently boasts an additional 26,000 federal law enforcement personnel. The total number of CBP personnel is 60,000, according to the CBP website.

Further, CBP, with this huge number of federal law agents and officers. is now, “…one of the world’s largest law enforcement organizations.” Congress appropriated $18 billion to the Border Patrol in 2020, while Custom’s budget was about $9 billion. The Acting Director of CBP is Mark A. Morgan.

By comparison, Immigration and Custom Enforcement (ICE), which also employs about about 20,000 officers, agents, and other staff in offices world-wide, was formed after 9/11 from other agencies and has an annual budget of about $8 billion. According to their website, ICE’s stated objectives are to protect our country from transnational crime and illegal immigration which specifically involve our national security and public safety.

The Border Patrol is the center of concern here, however, because of this federal agency’s unique legal powers of search and arrest granted by Congress. However, these extraordinary legal powers have always been used in the BP’s policing of presumed noncitizens entering our national borders without documentation.

Since these special legal powers were granted in 1946 by Congress, the Border Patrol has only been deployed in three major protests involving U.S. citizens. They include a largely undefined role by BP in the Civil Rights Movement in the 1960s, a presence in support of law enforcement during the protests and rioting after the murder of Rodney King in Los Angeles in the 1990s, and for a very limited time after the events of 9/11 when the BP supplemented surveillance of potential terrorists at American airports.

Unique History
Formally enacted by Congress in 1924 under the National Immigration Act — although a small number of border agents guarded the Mexican border long before —  the U.S. Border Patrol has worked in virtual obscurity for the majority of its existence. Far from public scrutiny and equally far from Congressional accountability, both the accomplishments and failures of the Border Patrol throughout the majority of its history have been generally ignored. Congressional budgets were for the majority of its history appropriated with little fanfare, public input, or serious attempts by Congress for accountability. With a few notable exceptions, what happened along our southern border with Mexico, where the majority of the BP patrolled, was out of sight and mind.

Since Tuesday morning, September 2001, there is no question the Border Patrol has rapidly broadened its original goals and objectives, including substantial increases in its Congressional budgets. It is very easy to forget just how antiquated and insulated the BP was. For instance, the response by the Border Patrol in the immediate hours after 9/11 at the sector station in McAllen, Texas was typical of other BP stations all along the Mexican border. In this day and age, its reaction would be considered relatively absurd. (At that time, I was embedded in the McAllen Border Patrol researching their routine practices and procedures.)

After terrorists crashed the first plane into the North Tower, McAllen BP agents were directed to circle their vehicles around their small, brick station against a possible coordinated attack by large numbers of terrorists crossing the nearby Rio Grande River. Station doors and windows were locked and barred with whatever materials available. The fifty caliber machine guns, seldom removed from the station’s armory except for training drills, were fully locked and loaded after they were placed to repel the expected attackers. None, of course, ever materialized. BP intel prior to 9/11 was sparse and frequently inaccurate.

Nineteen years after the Border Patrol in McAllen positioned themselves to battle international terrorists hand-to-hand, this same agency was deployed by DHS officials to Washington, D.C. These protests were largely peaceful protests by a diverse citizenry protesting the murder of George Floyd on 25 May 2020. While some agents were seen guarding public monuments and buildings, their complete role at the protests to date has not been clarified by those in charge.

Mission Creep
Whether in the 1880s, the 1920s, or since 9/11, one constant with regard to the Border Patrol has been the American public and its elected representatives’ hesitancy to provide oversight and accountability of the largest federal law enforcement agency. In general, there has been little effort to address systemic problems within the Border Patrol. Neglect of oversight and accountability has not erased systemic agency problems, it has allowed them to flourish.

Now mission creep once again has been championed by Border Patrol leadership and DHS — presumably under the direction of the White House — without a reckoning of the internal, crippling issues which continue to limit the BP’s ability to follow the rule of law.

The BP is a loose cannon and has been throughout most of its history (see Robert Lee Maril, Patrolling Chaos: The U.S. Border Patrol in Deep South Texas).

The Border Patrol is also now a rapidly changing federal agency which has policing powers which can conceivably challenge the basic rights guaranteed to Americans under their Fourth Amendment rights while, at the same time, gutting their First Amendment guarantees of free speech and protest.

An estimated 350 CBP agents and officers were presumably deployed in Washington, D.C. CBP’s Mark A. Morgan, now calling himself on the CBP website the “Senior Official Performing the Duties of the Commissioner,” stated that, “These ‘protests’ have devolved into chaos & acts of domestic terrorism by groups of radicals & agitators. @CBP is answering the call and will work to keep D.C. safe.”  Morgan’s statements closely mirrored the statements made by both Attorney General William Barr and President Trump.

A tangential concern is a Border Patrol drone, identified as the vehicle named CBP-104, part of a fleet of CBP drones; this one regularly surveilling the Canadian border. It was documented flying over the city of Minneapolis after spotted by The Electronic Frontier Foundation (EFF), which then provided the flight plan of this vehicle to the public. While protests against the killing of Floyd were in process in Minneapolis, the flight path of this drone, possibly loaded with highly sophisticated technology capable of facial recognition, deviated from its normal patrolling of the Canadian border.

Minneapolis lies clearly outside the legal jurisdiction of the BP. After circling the city, the drone returned to its regular flight plan along the Canadian border.  At this time it still remains unclear who at DHS specifically requested the Border Patrol assist other federal police forces in Washington, D.C. as well as what specific DHS individuals asked CBP to fly the CBP-104 around Minneapolis just as large protests took place after the killing of George Floyd.

The CBP drone aside, It is far more crucial to focus upon what policing roles the BP assumed in its deployment in our nation’s capital. Did they only guard national monuments? What else, if anything, did they do? Can their special legal powers be “shared” by the BP with other law enforcers if BP agents and officers are present in the general area or in a direct supervisory capacity?

Legal Jurisdiction and Extraordinary Legal Powers
Congress also gave BP agents and officers a jurisdiction which includes a 100 mile area stretching from our borders into the U.S. Both of our coasts on the east and west are considered national borders. As a result, many of our largest cities legally fall within the jurisdiction of BP. Approximately 200 million Americans reside within the jurisdiction of the BP.

As of 1946, Congress amended the legal policing powers of Border Patrol Agents from the more restrictive standard of probable cause of a felony crime to the much lower standard of reasonable suspicion. In summary, a Border Patrol agent or officer can arrest anyone without a warrant if he/she, “…has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest…”. An agent can also, “…board and search…any vehicle within a reasonable distance from any external boundary of the United States,” based again upon reasonable suspicion.

In sharp contrast to reasonable suspicion, the legal standard of probable cause requires, “…sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime.” Further, “Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.”

A good argument can be made that the lower standard of reasonable suspicion makes sense along all our borders. This is, moreover, especially true since Border Patrol agents may face threats not only from undocumented border-crossers, but from residents of border communities. This cannot be denied, except by those who do not fully understand the risks faced by BP agents and officers as they work their daily shifts (see Robert Lee Maril, The Fence: National Security, Public Safety, and Illegal Immigration along the U.S.–Mexico Border).

Current Acting Secretary of DHS, Chad Wolf, along with CBP’s Mr. Morgan now defend the use and actions of the Border Patrol in Portland and possibly other cities by the legal powers described in 40 U.S. Code 1315, a part of the Homeland Security Act of 2002. It gives Wolf the right to recruit federal agents from throughout his agency, including the Border Patrol, to “protect the buildings, grounds, and property” owned by the Federal Government.  While assigned this duty, said federal officers can, “make arrests without a warrant”.  In other words, they have the same extraordinary powers as the Border Patrol. 

These legal powers give BP agents and officers and any other DHS federal agents the right to arrest a citizen protester in Washington, D.C., on the basis of “reasonable suspicion” of a federal crime without a warrant. Or a lawful citizen protestor in New York City or Los Angeles or Houston or New Orleans. Further, he or she could search their person and vehicle without probable cause of a felony. A peaceful citizen protestor in this hypothetical case — those who constitute the vast majority of all protestors throughout the country in recent #blacklivesmatter and related protests — has no full protection under the Fourth Amendment.  The loss of Fourth Amendment rights also guts the efficacy of the First Amendment rights of free speech and lawful protest.

At the same time, recognition of the real dangers and risks threatening agents on patrol — and thus their extraordinary legal powers — does not preclude the acknowledgement the history of the BP overflows with systemic violence and corruption against noncitizen victims. Again, the best efforts of many BP agents, perhaps the majority of agents, cannot be denied.

In light of the legal powers that the BP possesses, there is a much more robust position which must be considered if the BP is going to be deployed at citizen protests. That robust position is this: common sense.

The historical and legal records of violence and corruption with the Border Patrol itself are not the result of a few bad apples, these egregious acts by BP officers are endemic to this federal law enforcement agency. Again and again, both BP rank and file members and BP leadership have consistently used their exceptional legal powers in their own best interests and at the expense of our democracy. Do we really want these same federal law enforcement officers at lawful protests by American citizens?

A Whopping Abuse of Powers
The legal history of the BP is replete with examples of the abuses of power against undocumented workers and other border-crossers. However, this repugnant record actually obfuscates the under-reported crimes by agents against victims. Crimes of corruption within leadership go underreported. Within six months of my being embedded as a researcher in the McAllen border patrol station, for example, an upper-level administrator with almost two decades of experience in the BP, and to whom I was assigned by the Sector Chief, was arrested in the parking lot of a nearby Walmart. He was accused of working for years for a drug cartel, placed on paid leave from his job, and then eventually allowed to retire with his full federal pension.

I was repeatedly told at the time by both BP agents and leadership this was the customary way in which corruption by BP administrators was handled. Additional research since that time demonstrates these issues are systemic, not just occasional cases by lone individuals in the BP. Over the majority of its history, proper and consistent oversight of the BP has been missing in action.

“From 2005 to 2012, 125 current or former CBP employees were convicted of corruption related activities. Twice that many are arrested each year.”

Another example of the systemic acceptance of the legal abuse of policing powers are the issues raised by and against the BP’s own Internal Affairs. In 2014 Mark A. Morgan, who was then serving as Deputy Assistant Director of the FBI’s Inspection Division, was temporarily placed in charge of the investigation of BP own Internal Affairs in Washington. At about the same time, James Tomsheck had resigned his position as Border Patrol Assistant Commissioner of Internal Affairs. He was accused of not adequately investigating a large number of cases of violence by Border Patrol agents against illegal migrants. Tomsheck strongly denied these accusations.

In response to the allegations against him,  Tomsheck stated that, “Some persons in leadership positions in the Border Patrol were either fabricating or distorting information to give the outward appearance that it was an appropriate use of lethal force when in fact it was not.”

Tomsheck is referring to a 4-year period, from 2010 to 2014, when Border Patrol agents along the Mexican border killed twenty-eight people. At the time Tomsheck also asserted that up to a quarter of these deaths occurred under questionable circumstances but were not properly investigated by BP administrators at all levels.

To his credit, the FBI’s Morgan coordinated an effort to bring the Border Patrol in line with the operating standards of other federal law enforcement agencies. He specifically created a handbook describing use of force protocols for all CP personnel. At the same time, Morgan also “oversaw the investigation of criminal and serious administrative conduct by the CBP workforce.”

Morgan should be commended for putting together a coherent handbook describing use of force protocols required of all CP agents and officers.  However, this accomplishment begs a more serious question suggesting the status of the BP in 2014 compared to other federal law enforcement agencies at that time. Why, in the first place, would the BP, ninety years after its inception by Congress in 1924, still lack rigorous and unambiguous standards regarding use of force by its agents when standards by other federal law enforcement agencies had long since been codified?

In the summer of 2019, the Border Patrol Facebook scandal once again emphasized the white supremist, hyper-masculine, faux militaristic aspects which have found a safe place within the culture of this federal agency. More than 9,000 individuals, an undetermined number of whom were active or previous employees of the BP, had access to the Facebook group. This included BP leadership. More than seventy CBP agents were investigated.

How could any BP leadership not know about this rampant culture hiding in plain sight for years? And if it did know, as it eventually stipulated, why didn’t BP leadership actively seek to pursue all those BP personnel, including those in leadership positions, to the fullest extent of its abilities as the largest federal law enforcement agency?

Said another way, does it make commonsense the same federal law enforcement agency, called upon under the presumed direction of the White House to support other federal law enforcement agencies monitoring lawful protest among citizens, cannot regulate its own hate speech and sexualized depictions of elected public officials on social media?

The hate speech and contemptible photoshopped images of national politicians, particularly women, disliked by those with access to this Facebook group is replicated again and again on a daily basis in the stark inability of this well-resourced institution to find ways to recruit, mentor, and retain female federal agents.

Almost every year the BP makes excuses for itself, the excuses often widely varying from one year to the next. The fact is that female agents, as long as statistics have been available, have rarely exceeded five percent of the Border Patrol’s labor force. Women are just as well qualified, perhaps more so in some areas of BP work, than men. Female tokenism among BP leadership, often short lived, is typical and highly touted to the public. It is no wonder, then, that female agents who serve honorably and well in the Border Patrol frequently try to move into other federal law enforcement agencies, or altogether leave federal law enforcement, because of discrimination and harassment (Maril, The Fence).

One final example of the Border Patrol’s longstanding attitudes towards female agents is the San Diego BP station where, in 2015, a supervisor for several years placed a hidden video camera in the only bathroom designated for female agents. His detailed catalogue of photographs became a part of the extensive evidence collected against him by the prosecution. Only through the persistence of the female agents at this BP station was their supervisor finally charged, convicted, and sentenced to prison. Where, one may reasonably ask, were all the other supervisors and agents who knew about this crime for years, but chose to keep silent? Where was their union, the National Border Patrol Council, which claims 80% of all BP agents are members?

This legacy of BP violence and abuse is so outstanding it has entered the Mexican oral tradition as corridos, folk songs over a period of more than 100 years which warn of the dangers for those without documentation of crossing the border. These dangers include the BP. Song after song, personal stories passed on from one generation to another, describe in great detail the abuses of the Border Patrol.

So widespread and embedded in the Mexican culture are these corridos, the BP in 2005 actually produced their own corridos to try to counter these powerful borderland narratives of border-crossers who were victimized.

These facts about the history and culture of the BP, of course, do not condemn all BP agents and leadership nor deny, for example, this federal agency has protected and saved the lives of countless border-crossers. Often heroic, these accomplishments are part what the Border Patrol is supposed to do. Never the less, common sense tells us we cannot trust the BP with its extraordinary legal powers to interact with American citizens protesting their rights if this same federal law enforcement agency continually fails to hold its own personnel to the rule of law.

The National Border Patrol Council
The National Border Patrol Council, founded in 1967, is a highly politicized federal union with a history of graft and corruption. The current union president, Brandon Judd, has closely and openly aligned the NBPC to the political expediencies of President Trump.

Terrence (T.) J. Bonner was the long-time leader of the NBPC throughout the 1990s and until 2010. In August 2012, Bonner was indicted by a federal grand jury, “…on charges of diverting hundreds of thousands of dollars in union funds for personal use.” He was accused of submitting false expense vouchers while, “…visiting his mistress in Chicago, his family, hockey games and other sporting events unrelated to the union.”

According to Laura Duffy, who was one of the U.S. Attorneys who participated in the case against Bonner, “Siphoning hundreds of thousands of dollars from hard-working Border Patrol agents, many of whom put their lives on the line every day to protect this country, is a particularly troubling form of corruption that must be addressed.”

The legal charges against Bonner were later withdrawn after law enforcement investigating the case were issued a warrant to obtain certain incriminating materials believed to be in Bonner’s home. A judge ruled seizing other materials than those covered by the warrant exceeded the scope of the original warrant and thus tainted all evidence seized from Bonner’s home. There are various rumors within the Border Patrol as to the nature of the numerous files which should not have been seized. Bonner has maintained his innocence to all allegations and charges against him.

In February 2020, the FBI announced it was investigating the disappearance of $500,000 from one of the NBPC’s largest regional union affiliates in El Paso. The union has 1,400 paying members who contribute about $60 a month from their paychecks to their union. One of eight NBPC mission statements on its own website reads, “We safeguard conditions of employment, agreements, practices, employee rights, and the labor laws of the United States.” Judd has maintained he knows little about this union corruption and is working with the DHS. He has stated the DHS is looking at specific individuals in the local’s leadership who allegedly diverted funds from the local’s bank accounts.

This FBI investigation comes after the Border Patrol’s own Integrity Advisory Panel reported in 2016 it expected, given the dominant culture and structure within the Border Patrol, increased numbers of crimes committed by agents and officers would adversely impact its ability to guard our borders.

Oversight and Accountability
The Border Patrol has the jurisdiction to be deployed in Washington, D.C. as well as most of our largest cities. It also has the potential legal authority to gut our first and fourth amendment rights guaranteed by our Constitution But lest the U.S. Border Patrol, “one of the world’s largest law enforcement organizations,” morphs through mission creep into President Trump’s federal law enforcement agency of choice during nonviolent protests by American citizens, the BP deserves our utmost attention.

In these challenging times the Border Patrol requires the oversight and accountability of a bipartisan Congress representing their constituents. In fact, Congressional Committees as early as 5 June 2020, called upon the Department of Homeland Security to be transparent about the present and future actions and objectives of the BP at the Washington, D.C. protests. The American public and our elected officials deserve a timely and lucid response.

For most of its history the Border Patrol has been a loose cannon. In 2020 it must not be allowed to become a ticking timebomb ripe for misuse.

Lee Maril, Ph.D., is a Professor of Sociology at East Carolina University.  The author of The Fence: National Security, Public Safety, and Illegal Immigration along the U.S.–Mexico Border and Patrolling Chaos: The U.S. Border Patrol in Deep South Texas, he blogs at leemaril.com.