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Court Finds CBP FOIA Violation Excuses Laughable

Written by Subject: Events: Arizona

A federal magistrate in Phoenix, Arizona recently chastised U.S. Customs & Border Protection (USCBP) and the Department of Homeland Security (DHS) for blatant violations of the Freedom of Information Act. The magistrate's findings were the result of an ongoing lawsuit filed by the ACLU & two University of Arizona law professors over three years ago.

While violations of federal law by DHS and USCBP are nothing new and FOIA lawsuits against them are numerous, what's relatively unique in this case is the subject of the FOIA lawsuit referenced above. Specifically, it targets the Green Monster's policies & procedures regarding interior enforcement operations such as internal roadblocks and roving patrols along with complaints filed against USCBP related to the enforcement of those policies and procedures.

True to form, USCBP initially refused to investigate or respond to the ACLU's complaints regarding interior roadblock and roving patrol operations and only grudgingly began releasing documentation after a FOIA lawsuit was filed in 2014. Over a year later, only a fraction of the thousands of responsive documents had been released to the ACLU by USCBP and what was released had been heavily redacted. U.S. Customs & Border Protection then declared it was done cooperating with the FOIA request and refused to release anything further. In response, the ACLU published a preliminary report based upon what had been released while at the same time appealing to the federal judiciary regarding the heavy redactions in the released documents and the thousands of remaining documents that hadn't been released at all.

The ACLU's preliminary reported titled:

Record of Abuse: Lawlessness and Impunity in Border Patrol's Interior Enforcement Operations

was released in October 2015. While the report was based on incomplete documentation from USCBP, it nonetheless made it abundantly clear why the Border Patrol was refusing to release anything further:

"Government records obtained by the ACLU shed new light on Border Patrol's vast interior enforcement operations, most of which occur far from any international border. Though Border Patrol says these operations are "safe, efficient, and cost-effective," the agency's own records undermine those claims, revealing a systemic lack of oversight and accountability for agents who violate border residents' most basic civil and constitutional rights on a dramatic scale. These documents show that Border Patrol's extra-constitutional police practices often amount to a de facto policy of "stop and frisk" for border residents."

The report goes on to not only show that USCBP has been actively lying to Congress by substantially under-reporting the number of complaints filed against the agency:

"Specifically, though the complaint records obtained by the ACLU to date are incomplete and taken from just two of Border Patrol's twenty sectors, they significantly outnumber the civil rights complaints DHS and CBP disclosed to Congress during the same period. For example, from Fiscal Year 2012 through Fiscal Year 2013, DHS oversight agencies reported just three complaints involving alleged Fourth Amendment violations, nationwide. Yet government records produced to the ACLU reveal that at least 81 such complaints originated in Tucson and Yuma Sectors alone during the same period (with at least 38 more through just part of FY 2014)"

But also the seriousness of those complaints:

"The records contain recurring examples of Border Patrol agents detaining, searching, and terrorizing individuals and entire families at interior checkpoints and in "roving patrol" vehicle stops far into the interior of the country; threatening motorists with assault rifles, electroshock weapons, and knives; destroying and confiscating personal property; and interfering with efforts to video record Border Patrol activities. They reference dozens of false alerts by Border Patrol service canines resulting in searches and detentions of innocent travelers. Above all, these documents show a near-total lack of investigation of, much less discipline for, egregious civil rights abuses; to the contrary, some of the records show Border Patrol tacitly or explicitly encouraging its agents to violate the law."

Additionally, the report highlights the fundamental ineffectiveness of interior checkpoints at their stated goal and shows how interior checkpoints are more often than not used for illegal purposes such as general crime control and drug interdiction:

"Finally, CBP's own data calls into question the agency's claims that interior checkpoint operations are an efficient and effective enforcement strategy. For example, CBP apprehension statistics show that for 2013, Tucson Sector checkpoint apprehensions accounted for only 0.67 percent of the sector's total apprehensions. In calendar year 2013, nine out of 23 Tucson Sector checkpoints produced zero arrests of "deportable subjects." The same year, Yuma Sector checkpoint arrests of U.S. citizens exceeded those of non-citizens by a factor of nearly eight (and in 2011, by a factor of 11). One checkpoint in Yuma Sector, located 75 miles from the border, reported only one non-citizen apprehension in three years, while producing multiple civil rights complaints during the same period. Despite the Supreme Court's prohibition on general "crime control" checkpoints, these records indicate that Border Patrol checkpoint activities are more often directed at drug busts than at immigration enforcement."

Given that the ACLU's Record of Abuse publication is based in part on the following documents released by USCBP:

August_8_2014_CBP_1_76_0.pdf

August_13_2014_CBP_77_259_0.pdf

September_24_2014_CBP_579_654.pdf

October_10_2014_CBP_655_712_1.pdf

December_15_2014_CBP_824_984_0.pdf

December_19_2014_OIG_1_208_0.pdf

April_3_2015_CBP_1282_1326_0.pdf

April_14_2015_CBP_1327_1511_1.pdf

January_6_2015_CBP_985_1133_0.pdf

February_20_2015_CBP_1134_1175_0.pdf

March_12_2015_OIG_0209_0353_0.pdf

March_17_2015_CBP_1176_1281_1.pdf

May_21_2015_CBP_1512_1680_1.pdf

It makes one wonder what it is USCBP is trying to hide by refusing to release thousands of additional documents responsive to the ACLU's FOIA request.

Earlier this year, when considering whether or not USCBP had met its obligations under the Freedom of Information Act, Federal Magistrate Bernardo Velasco stated:

"Government transparency is critical to maintaining a functional democratic polity, where the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies," he wrote. The result, he said was FOIA, which is designed "to facilitate public access to government documents by establishing a judicially enforced right to secure government information from possibly unwilling official hands."

Regarding USCBP's reasons for refusing to release any further information related to the FOIA request, Velasco went on to criticize the USCBP on the following main points:

* USCBP has no valid reason for refusing to release information regarding the location of the agency's interior roadblocks since such roadblocks aren't secret, cannot be made secret given the nature of the operations & part of SCOTUS's rationale for allowing them in the first place was based on their limited scope and visibility to the public

* USCBP's contention that releasing data regarding the nationality & skin color of people stopped by agents was  a violation of their privacy is laughable since personally identifiable information regarding such individuals was not being requested.

* Since the USCBP claims their drug sniffing dogs are reliable and certified, USCBP can't withhold documentation related to the certification and reliability of the K-9 units routinely employed at interior roadblocks.

While all of these points are common sense to most of us, it's clear that USCBP leadership is not only full of individuals with little in the way of common sense but also individuals who have little more than thinly veiled contempt for the rule of law, individual rights and government transparency. What else would one expect however from agents of an agency that routinely stops, seizes, detains and demands individuals answer investigatory questions absent any reasonable basis to believe they've violated any law while at the same time ignoring their legal mandate to answer questions and provide access to public documentation to the very public the agency claims to serve and protect.

Additional links related to the content of this story appear below:

ACLU FOIA Lawsuit (Checkpoints & Roving Patrols) – April 2014

Record of Abuse: Lawlessness and Impunity In Border Patrol's Interior Enforcement Operations – 2015 ACLU Report

Judge backs ACLU in lawsuit over border checkpoints - Howard Fischer, Capitol Media Services, January 28, 2017

ACLU, U. Arizona law professors sue U.S. Department of Homeland Security for Border Patrol records – ACLU Press Release

Border Patrol Systematically Violates Civil Rights, ACLU States – Elizabeth Stuart, Phoenix New Times, October 16, 2015

BP Roadblocks: Ineffective, Inefficient & Rife with Abuse – Roadblock Revelations, November 2015

Border Patrol Accused of Profiling and Abuse – Fernanda Santos, New York Times, October 14, 2015

Transparency Not A Priority In The Department of Homeland Security – Roadblock Revelations, October 2008

Hold CBP Accountable – Stopping U.S. Customs and Border Protection (CBP) Abuse

ACLU: Border Rights – ACLU Online Resource

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