POGO Appropriations Requests for Homeland Security Subcommittees

Dear Chairman Murphy, Ranking Member Britt, Chairman Joyce, and Ranking Member Cuellar:

The Project On Government Oversight (POGO) is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. POGO champions reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

To further strengthen Congress’s efforts to promote government accountability and civil rights, we suggest several modest reforms, all of which could be addressed in either bill text or report language accompanying the Homeland Security appropriations bill.

• Provide more information on body-worn cameras and dashboard cameras.
• Improve Customs and Border Protection (CBP) transparency on complaints and discipline.
• Increase CBP death report transparency.
• Expand data collection regarding stops and searches.
• Increase FOIA capacity at high-volume agencies.

POGO submits the enclosed requests for language to be included in the fiscal year 2024 Homeland Security appropriations bill and report.

Thank you for your consideration of these proposals to strengthen government accountability and oversight. For more information, please have your staff contact me at [email protected].

Sincerely,

David Janovsky
Policy Analyst

Enclosure: 1

cc: The Honorable Patty Murray, Chair, Senate Committee on Appropriations
The Honorable Kay Granger, Chairwoman, House Committee on Appropriations
The Honorable Susan Collins, Vice Chair, Senate Committee on Appropriations
The Honorable Rosa DeLauro, Ranking Member, House Committee on Appropriations

Provide More Information on Body-Worn Cameras and Dashboard Cameras

Appropriations Committee: Homeland Security
Agency: Department of Homeland Security
Account: Customs and Border Protection
Type of Request: Report Language

Background
Last year, Congress appropriated $21,055,000 to Customs and Border Protection (CBP) for its Incident Driven Video Recording system, including funds for data storage and public release, and it required CBP to provide an execution plan and deployment schedule within 90 days of passage of the omnibus.¹

CBP’s initial body worn camera policy was issued in August 2021.² On May 25, 2022, President Biden signed Executive Order 14074 on “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety.” Among other provisions, it required all heads of federal law enforcement agencies adopt, within 90 days, body-worn camera policies that:

• Are publicly available
• Require federal officers who conduct patrols or engage with the public to regularly wear and activate body warn cameras, and
• Contain procedures for expedited release of footage following incidents involving serious bodily injury or deaths in custody.³
  

CBP’s current body worn camera policy does not contain procedures for expedited release of footage following incidents of serious bodily injury or death in custody.⁴ CBP has either failed to revise its body worn camera policy since the executive order was issued, or it has declined to make its revisions public. CBP has also released very little information about how many agents have been equipped with body cameras, or whether any body camera footage exists of incidents involving serious bodily injury or death in custody.

Proposed Report Language
The Committee is concerned that CBP’s body-worn camera policy is out of compliance with Executive Order 14074. CBP’s policy contains no provisions for expedited release of body worn camera footage of incidents involving serious bodily injury or death in custody, and many of its other provisions are vague or inadequate. CBP has never released body worn camera footage of any incident involving serious bodily injury or death in custody.

Not later than 30 days after the enactment of this Act, CBP shall provide a detailed public report on its Incident Driven Video Recording System, including detailed information on where body worn cameras and dashboard cameras have been deployed and plans for future deployment, as well as revised policies that comply with Executive Order 14074. Further, CBP reports to Congress and the public regarding deaths in custody must include information on whether any video footage of the death existed, or whether cameras failed to activate or footage was not preserved.

Improve Transparency on Customs and Border Protection Complaints and Discipline

Appropriations Committee: Homeland Security
Agency: Department of Homeland Security
Account: Customs and Border Protection
Type of Request: Report Language

Background
The entire life cycle of complaints at CBP — from filing through acknowledgment, investigation, and outcome — fails to meet basic standards of responsiveness and redress.⁵ A 2019 Department of Homeland Security Inspector General (DHS IG) report highlighted the agency’s failure to properly oversee misconduct and discipline.⁶ In 2021, the U.S. House Committee on Oversight and Government Reform also documented core deficiencies in CBP’s discipline process, even in cases when the agency’s Discipline Review Board determined that there was a violation of policy.⁷ Numerous civil society organizations that directly represent migrants who have been subjected to abuse by CBP agents report that the agency has failed to redress or even respond to dozens of complaints filed with DHS.⁸ In response to these filings, DHS must provide regular reports to complainants, including acknowledgement of receipt and final disposition. Public accounting of discipline imposed must also be improved.

Proposed Report Language
a. The Department of Homeland Security shall provide all complainants with a written confirmation of receipt of their complaint within 90 days and a summary regarding the outcome of their complaint within one year, including findings of fact, findings of law, action taken, and available redress.

b. Customs and Border Protection shall make publicly available on its website:

1. Updated on a monthly basis, all disciplinary proceedings that CBP Office of Professional Responsibility has finally adjudicated where OPR found grounds for discipline, including (a) the name of the officer, (b) the misconduct the officer is alleged to have committed, and (c) the final disposition, including discipline recommended by CBP’s Discipline Review Board and ultimate discipline imposed.

2. An annual report containing all instances of alleged misconduct referred to OPR, including in each case (a) the source of the complaint (victim, another officer, self-reported, etc.); (b) the nature of the alleged misconduct, with reference to the specific code of conduct and policies governing CBP conduct; (c) whether OPR initiated an investigation, referred to OIG, or declined to investigate; and (d) whether OPR initiated disciplinary proceedings and (if disciplinary proceedings were initiated), the final disposition or current status of the case.

Increase CBP Death Report Transparency

Appropriations Committee: Homeland Security 
Agency: Department of Homeland Security 
Account: Customs and Border Protection 
Type of Request: Report Language   

Background
Under the Death in Custody Reporting Act, CBP reports in-custody deaths to the Department of Justice, which in turn reports to Congress. Report language accompanying DHS Fiscal Year 2021 Appropriations also required CBP to take certain actions with respect to the review and reporting of deaths of individuals in its custody and deaths in which CBP was involved. The governing report explains: “Not later than 30 days after the end of each fiscal year, CBP shall submit a report to the Committee detailing all such deaths, including summaries of mortality reviews and compliance with TEDS. In addition, the Office of Professional Responsibility (OPR) shall brief the Committee on its findings and associated recommendations for any deaths it investigates.”⁹ The CBP Office of Professional Responsibility publishes reports on each fiscal year’s CBP-related deaths.¹⁰ These statistical reports do not, however, contain the summaries and recommendations it provides to the Committee.

Proposed Report Language
As previously required, CBP shall continue to submit an annual report to the Committee detailing the fiscal-year deaths of any individual in CBP custody or any individual not in custody if CBP personnel were involved in the death, including summaries of mortality reviews and compliance with TEDS. That report shall simultaneously be made publicly available on CBP’s website, with limited redactions. The CBP Office of Professional Responsibility shall also, subsequent to briefing the Committee on its findings and recommendations regarding deaths in custody, promptly post online those findings and recommendations.

Expand Data Collection Regarding Stops and Searches

Agency: Department of Homeland Security
Sub-agency:Customs and Border Protection
Account:Border Security Operations
Type of Request:Report Language

Background
CBP is already required to collect and report publicly on its website data pertaining to all checkpoint, transportation checks, and roving patrol stops with personally identifiable information redacted on specific individuals.¹¹ This collection should continue with added information on the purpose, nature, duration, and outcome of these encounters.

Proposed Report Language
Data collection. —CBP shall continue to collect and report publicly on its website data pertaining to all checkpoints, transportation checks, and roving patrol stops, to be updated semi-annually with all necessary redactions of personally identifiable information about specific individuals. For roving patrols and for any individual detained beyond a brief and limited inquiry, such as a primary inspection at a checkpoint, this should include—

(1) the date, time, and location of the contact;

(2) the law enforcement official’s basis for, or circumstances surrounding, the contact, including if such individual’s perceived race or ethnicity contributed to the basis for, and circumstances surrounding, the contact;

(3) the identifying characteristics of such individual, including the individual’s perceived race, gender, ethnicity, and approximate age;

(4) the duration of the stop, detention, or search, whether consent was requested and obtained for the contact, including any search;

(5) a description of any articulable facts and behavior by the individual that justify initiating the contact or probable cause to justify any search pursuant to such contact;

(6) a description of any items seized during such search, including contraband or money, and a specification of the type of search conducted;

(7) whether any arrest, detention, warning, or citation resulted from such contact and the basis for such action;

(8) the immigration status of the individual, if obtained during the ordinary course of the contact without additional questioning in accordance with this Act, and whether removal proceedings were subsequently initiated against the individual;

(9) whether a body-worn camera or any other video or audio recording exists that recorded the stop or detention.

(10) whether force was used by the law enforcement official and, if so, the type of force, justification for using force, and whether the use of force resulted in injury or death; whether any complaint was made by the individual subject to the contact, and if so—

(a) which oversight components within or outside of the Department of Homeland Security investigated the complaint;

(b) how long the investigation lasted;

(c) a description of the methods of investigation used; and

(d) the badge number of the law enforcement official involved in the complaint.

For transportation checks, the data should also include:
(1) a description of the boarding of public conveyance by CBP in air, maritime and ground stations, ports, and terminals when an arrest is made;

For checkpoints, the data should also include:
(1) the location of all tactical and permanent checkpoints that were in operation for any period of time;

(2) the citizenship status of subjects arrested following secondary inspection; and

(3) a description of how the agency uses information collected by cameras and license plate readers.

Increase FOIA Capacity at High Volume Agencies

Appropriations Committee: Homeland Security
Agency: Department of Homeland Security
Type of request: Bill Text

Background
The Department of Homeland Security currently receives and processes half of the entire federal government’s FOIA volume, with much of that volume dedicated to immigration-related requests.¹² As Representative Xochitl Torres Small (D-NM) stated during a 2019 hearing of the House Committee on Oversight and Reform, “[n]early 90 percent of all FOIA requests at DHS come from individuals or their attorneys who are seeking access to information contained in their immigration files.”¹³ While everyone is entitled to records the government possesses on them, as a practical effect, this leaves fewer and fewer resources for non-immigration FOIA requests. Expanding the number of FOIA officers who are processing FOIAs unrelated to immigration would allow better oversight of DHS policies, law enforcement, and performance.

Proposed Bill Text​
​DHS shall be allocated funding for six staffers dedicated to processing FOIA requests for each of the five GS levels between GS-5 and GS-10. An additional five staffers shall be hired at the GS-12 or GS-13 level. All 35 of these staffers shall be dedicated to the processing of immigration-related FOIA requests. DHS shall be further allocated funding for 12 staffers dedicated to processing requests for non-immigration related FOIAs. Two staffers should represent each GS level between GS-5 and G-11.