Bad Watchdog Episode 3: Abuse of Power and People

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Host Maren Machles: Last time on Bad Watchdog.

Audio from Black Lives Matter (BLM) protest: Black lives matter! Black lives matter! Whose lives matter? Black lives matter!

Activist and organizer Radiya Buchanan: I think this was probably one of the first times in a really long time that something that was happening, and that happens a lot in the United States to Black people, was seen on a global scale.

[Audio of tear gas and sound grenades going off at Lafayette Square BLM protest.]

Senior Investigator at the Project On Government Oversight (POGO) Nick Schwellenbach: And Lafayette Square was kind of such a big deal to people in the, in the DC area. It was a huge deal at the time. People across the political spectrum said as much.

Former POGO Senior Journalist Adam Zagorin: Had the president not been there, it’s difficult to imagine that any of this would have happened in the way that it did. So that is why Mr. Cuffari’s refusal to take up this matter struck Nick and myself as being something that you, you couldn’t just say, “Oh, well.” You really had to say, “Why?”

KHOU 11 anchor: One agent was caught on camera swinging his horse strap at one of the migrants.

Director of The Constitution Project at POGO Sarah Turberville: Imagine what happens when cameras aren’t rolling.

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Maren: In our last episode we looked at two incidents of federal use of force: the George Floyd protests in Lafayette Square in DC and the Border Patrol agents chasing Haitian migrants in Texas. Both called for an independent review by DHS IG Joseph Cuffari and both times he refused to do that review.

In this episode, we are going to start by taking a deeper look at the Department of Homeland Security, or DHS, to help us better understand the breadth of responsibility Cuffari holds as the watchdog of this federal agency. Because not all inspectors general are created equal.

What you may not know about this department is that it’s actually relatively young. It was established back in 2002, in response to a growing concern about terrorism in the wake of 9/11. Here’s Sarah Turberville again, from The Constitution Project here at POGO.

Sarah Turberville: So the Department of Homeland Security is our youngest cabinet agency. It was created in the aftermath of September 11th. And lawmakers acted, responded very quickly to restructure and reorganize the country’s whole approach to dealing with, at that time, terrorism.

Maren: Let’s listen to a DHS recruitment video from 2020. It starts with former President George W. Bush talking to first responders in the rubble after 9/11.

Audio from DHS recruitment video, former President George W. Bush: And the people who knocked these buildings down, will hear all of us soon.

Maren: It may be hard to hear but he says, “the people who knocked these buildings down will hear all of us soon.” It then flashes forward to Bush announcing the establishment of the Department of Homeland Security.

Audio from DHS recruitment video, former President George W. Bush: The Homeland Security Act of 2002 takes the next critical steps in defending our country. Continuing threat of terrorism, the threat of mass murder on our own soil will be met with a unified effective response. Dozens of agencies charged with homeland security will now be located within one cabinet department with the mandate and legal authority to protect our people.

Maren: The Department of Homeland Security is now the third-largest cabinet agency in the country. It includes agencies like FEMA and U.S. Immigration and Customs Enforcement and the Secret Service. Some agencies were created and others were reorganized, all coming together to stop terrorism under this new department.

Sarah Turberville: And as part of that, this entity called Customs and Border Protection was created, which is now the largest law enforcement agency in the country. Not the largest law enforcement agency in the federal government, but the largest law enforcement agency full stop in the United States.

Maren: Back in 1993, there were about 4,000 Border Patrol agents. After 9/11, the number of agents exploded. Today, there are more than 19,000.

Sarah Turberville: There’s a lot of questions about the wisdom of expanding this agency that rapidly.

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Maren: Let’s just pull back out for a moment to the current inspector general, Joseph Cuffari. Remember in the last episode where I really emphasized how important the work of the inspector general is, especially those that are charged with investigating the Department of Homeland Security for abuse of power? This is one of the reasons why. Not only is DHS sprawling, but it also houses the largest and most powerful law enforcement agency in the country. And if this power goes unchecked, and those who wield it go unquestioned, it can lead to some serious human rights violations.

NBC 7 San Diego reporter 1: Justice in a deadly international human rights case that has gripped this community for more than a decade… Evidence of an alleged Border Patrol coverup…

Reporter 2: Was also violently beaten and smothered by those agents, according to attorneys.

CNN reporter: The agent fired his weapon, fatally wounding one of the assailants. Marta Martinez was a witness. What she says she heard and saw was nothing like either account officials have given.

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Maren: Unfortunately, the refusal to second guess the decisions of these agencies, especially when it comes to human rights, it’s not just a possibility. It’s a reality under Joseph Cuffari’s leadership, and it led POGO’s investigators to uncover some of Cuffari’s most harmful decisions yet.

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This is a podcast about finding the truth and holding people accountable, which is essentially — and not coincidentally — the work of an inspector general.

I’m Maren Machles, and from the Project On Government Oversight, this is Bad Watchdog.

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Maren: Can you describe what your experience was like working in DHS?

Former CBP Assistant Deputy Commissioner for Internal Affairs James Wong: It was very chaotic, um. They stood up very rapidly.

Maren: This is James Wong. He’s retired, but he used to work for Internal Affairs at Customs and Border Protection, or CBP, which, remember, is an agency housed under DHS.

James Wong: One of the things that I can remember distinctly was a lack of, uh, structure. They created all these organizations, but they had not established any real guidelines. And I can remember communicating with headquarters. And asking them, “Well, you know, what’s our policy regarding, regarding whatever?” And they would say, “Why are you asking me?” “Well, you’re in headquarters. You’re, you’re establishing our policy.” “Well, I don’t know.” So, so I would tell my agents, I’d say, “Okay, let the law be your guidance, and as long as we don’t break the law, we’re not doing anything wrong.”

Maren: James was with the Department of Homeland Security back when it was first established. He’s been in law enforcement since the ’70s and before the creation of DHS he worked with U.S. Customs Service. And while it’s clear that law enforcement all over the country have become more and more militarized, James said that militarization was always very pronounced after the formation of CBP.

James Wong: What I found in CBP was that certain elements, particularly the uh, Border Patrol, were more militaristic.

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Primary difference between law enforcement and the military is the military, their mindset is to overcome the enemy. You have an enemy and it’s your job to defeat that enemy. Law enforcement, your job is to protect the public. So two different mindsets and I could never reconcile, uh, the mindset that these people are our enemy. No, they’re not. They’re people. A couple of things that I heard from Border Patrol was, “I will never retreat, I will never give up one foot of American soil.”

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Maren: I want to quickly talk about the origin of CBP and two agencies that were central to its formation. First there’s U.S. Customs, which used to be under the Department of the Treasury. It was formed in the 1700s to monitor what goods were coming in and out of the country, collect tariffs, that sort of thing. And then there is U.S. Border Patrol which used to be under the Department of Labor. Since I’ve started this job, I have learned about the Border Patrol, and I can tell you, there are deeply rooted problems in this agency.

Sarah Turberville: The history of this agency in particular is one of, frankly, a militia enforcing racial caste systems in America. We pride ourselves on being a nation of immigrants. But once those migrating into the US were non-white — coming from places, for example, like China in the late 1800s, along with the end of slavery and the now citizenship of freed people of color, you know, that’s when we saw the explosion of efforts to restrict immigration, and it was in that climate that what came to be known Border Patrol was born.

[Music plays.]

Maren: Flash forward to now, post-9/11, this historically racist agency was combined with Customs, moved under the new Department of Homeland Security, given new powers, and it was given a new mission: Fight terrorism. Kind of like those shows where those agents fight bad guys trafficking people and drugs, like James Bond! In fact, here is the audio from a recruitment video for CBP.

[Music changes.]

Audio from a CBP recruitment video: Every day a million people enter the United States: travelers, visitors, newcomers, and some who intend us harm. So every day, the men and women of U.S. Customs and Border Protection safeguard our nation. CBP officers stop terrorists, drugs, and counterfeit goods. CBP is America’s edge in protecting our nation. Join us. CBP. America’s edge.

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Maren: This literally sounds like the trailer for a movie. It sounds like if you sign up to work for CBP you will be fighting international bad guys. But the visuals shown in this video are of agents looking through boxes, looking at computer screens, interacting with and helping travelers. And this is the perfect example of the dissonance between how the job is described and marketed and what the job actually is. Most of the time, CBP is not dealing with terrorists or traffickers.

Sarah Turberville: There is a significant mismatch between the skillset and the types of people that are being, being recruited to the agency and what the actual needs are on the ground. Primarily what is happening now and has been for nearly a decade is an influx of women, children, and families seeking asylum status in the United States who are coming across the southern border. And so it’s not drug interdiction and human trafficking and the like. I mean, there is some of that that happens here and there…

Maren: And the folks that are seeking asylum are often running away from persecution and violence, but they’re treated like criminals and terrorists because that is how Border Patrol is designed. It was not built to address a humanitarian crisis.

Sarah Turberville: So now you’ve got these people who were recruited to fight terrorism and interdict drug trafficking, dealing with women, family, and children who are seeking asylum. And you know, I think if you ask most Border Patrol agents, they would say, “This isn’t what I signed up for.”

Maren: And CBP has jurisdiction over not just every border, but within 100 miles of every border. Roughly two-thirds of Americans live within CBP jurisdiction. I’ll say that again: two thirds!

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Sarah Turberville: It’s a huge space that Border Patrol operates in. What’s difficult is that unlike a constituency in say, LA or New York or some metropolitan area where there’s a police chief or police force that’s run amok, there’s no kind of rights-bearing constituency, you know, seeking accountability, whether it be from elected officials or in the courts. Inherently, the people that Border Patrol interacts with and that are victims of abuse by agents are people that don’t possess as many rights as citizens do. And there’s also just fewer eyes and ears just because of the massive, you know, geographic space.

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Sarah Turberville: There’s also this problem of oversight by Congress, to the extent that it exists, is very diffused. There’s over 90 congressional committees or subcommittees that have some kind of jurisdiction over DHS.

Maren: Wow.

Sarah Turberville: So that means that there’s no one entity that’s really kind of robustly and rigorously consistently, doggedly pursuing this agency. It’s very difficult, I think, to decouple Border Patrol impunity from the racist rhetoric that’s coming from our leaders around discussions of immigration. Even if we didn’t have such a diffuse kind of oversight system in Congress, we still have Republicans and even some Democrats who don’t want to meaningfully take on systemic reform of this agency and Border Patrol, you know, thinks they can just wait out a new administration because most of the time they can. So it’s all of these things operating together, I think that are, are really the, the thrust of the impunity and kind of indicate why it’s so important for internal mechanisms like an independent, credible inspector general of DHS to be in place.

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Maren: So you have an agency that hired a bunch of folks real quickly, people who signed up to get bad guys and are instead mostly dealing with women and children seeking asylum. And it falls under a federal department that was rapidly established out of a fear of terrorism. The Department of Homeland Security seems to be the perfect example of a department that needs oversight. Needs a seasoned, independent, and thorough inspector general. And that brings us back to Cuffari.

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Nick Schwellenbach: After we wrote about the Lafayette Square issue you know, relating to the Secret Service, we had all these different threads that we were trying to pull. The domestic violence thread was one that we were trying to learn more about. It was just really vague at first. What we heard is that findings were removed from this domestic violence report.

Maren: The domestic violence report Nick is referring to was published in November 2020, but prior to its publication, Cuffari ordered some stark changes. And Adam was determined to figure out exactly what those changes were.

Adam Zagorin: The question was, well, wouldn’t it be great to get a copy of the entire report that they never published and compare it before and after with what they did publish? And that’s when we could count the pages and see exactly what they had taken out.

Maren: The original, unredacted report looked at 35 cases where domestic violence allegations against agents were substantiated, in 30 of those 35 cases, agents were allowed to keep their badges and their guns. So these were not just accusations, the violence was confirmed.

Nick Schwellenbach: So, if you’re in law enforcement, it matters if you can’t control yourself and you act out violently under stressful circumstances. We don’t want police — federal, local, state, or otherwise — beating people unnecessarily.

Maren: And DHS law enforcement agencies have policies on the books that allow them to take away the badges and/or guns from these abusers. And yet, in these cases they didn’t. The very first paragraph of this report outlines this disturbing finding. This report goes through several reviews inside the watchdog office and it comes to Cuffari for final approval.

Nick Schwellenbach: Cuffari gets this draft report. That’s the lead finding. And Cuffari writes an email, get rid of it.

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You would’ve no idea that there were these individuals who like beat their spouses yet continue to carry guns. You’d have no idea.

Maren: Anecdotes about these officers’ and agents’ abuses and their resulting discipline were also stripped from the report. One anecdote dryly explains how a CBP officer punched his wife in the face. He was given a five-day suspension. Less than 2 years later he is put on another 15-day suspension for assaulting another woman. While CBP charged the officer with Conduct Unbecoming, he remained on the force and was ultimately able to keep his firearm.

Nick Schwellenbach: All of that gone, gone from the final report.

Adam Zagorin: They suppressed this thing, completely suppressed it, and they published another version of the report that was missing, literally, I think between three and a half and four pages. It’d be like, you know, taking out a bodily organ and saying, “Okay, you’re all fixed up now” and this is the result.

Sarah Turberville: These are abusers that remain in the ranks, and Joseph Cuffari is one of the primary reasons that they still have jobs and still have guns.

Maren: In doing some research for this episode, I stumbled across this statistic: Domestic violence victims are five times more likely to be murdered when their abuser has access to a gun. Later, I found that same statistic was stripped from the report too. So when we think about what’s at stake, what Cuffari knew was at stake, the fact that it was his call to keep these findings from the public, honestly, it makes my blood boil. Why on Earth would he do that?

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Nick Schwellenbach: One reason that he gave was we don’t want to be second guessing disciplinary decisions by DHS without all the facts. Now, there’s a law on the books called the Lautenberg Amendment. And the Lautenberg Amendment says that if you are either convicted or you plead guilty to domestic violence or someone successfully gets a restraining order against you, you cannot have a gun. And if you cannot carry a gun in most law enforcement jobs, that’s a career ender.

The situation we saw here was arrests for domestic violence that did not necessarily lead to convictions or, or any of those other outcomes, but where the DHS was able to confirm that the domestic violence did happen.

Maren: It looked like Cuffari was focusing more on convictions and the Lautenberg Amendment. But in James Wong’s experience at CBP, a lack of conviction sometimes had to do with something much bigger, and much more sinister.

James Wong: It’s kind of a catch-22 for the spouse. You’re making a complaint and you realize without your spouse’s, uh, ability to have a firearm, they’re not gonna be able to do their job, so he and she are gonna lose substantial amount of money, maybe even be terminated.

But at the minimum, they, they should have their firearm removed and placed on administrative duties or administrative leave. I don’t know what’s going on today, but, uh, back when I was still working, uh, unfortunately that wasn’t the case.

Maren: Mm. What would happen back then?

James Wong: There would be a, uh, counseling. The, uh, allegations would be, uh, withdrawn or otherwise modified.

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Nick Schwellenbach: There also can be pressure from managers where they call up spouses, and this is what some of the people told us about in our reporting, to not press charges.

Maren: So wait, real quick. So you’re saying that if an officer or an agent had assaulted their spouse, off hours, a manager of that officer or agent would sometimes get involved and like potentially intimidate the spouse?

Nick Schwellenbach: Yeah.

Maren: Wow.

Maren (voiceover): This finding really shook me. I’ve spent a lot of my career looking into sexual and domestic violence and how the criminal justice system treats survivors. There’s the uphill battle to even getting a conviction, to getting a restraining order, the danger that comes with even reporting domestic violence in the first place. All of this is why most instances of domestic violence aren’t reported. So imagine someone you love is hurting you so much that you gather the courage to report it to a system where you know you might not be believed, or you’re told that there isn’t enough evidence to back up your claims. And then imagine your partner’s employer calling you, and telling you you could lose everything and they could lose their job if you continue forward. How would you feel? Would you feel safe staying with that person? And how likely would you be to try to file charges again if it does get worse?

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Maren: You pointed out one of his reasons for, um, taking some of this stuff out of the domestic violence report as like second guessing disciplinary actions, but isn’t it sort of the job of an IG to second guess things that happen?

Nick Schwellenbach: I’ve spent so many hours talking about this with many people. And you’re absolutely right. Yes. Inspectors general in many circumstances, yes. You know, they are supposed to give situations, decisions, actions a second look, an independent look, and, if warranted, criticize those decisions, arguably second guess them. Now, is it necessarily second guessing to draw attention to facts? What was interesting with the domestic violence report is the passages that were removed were mostly descriptive actually. So pointing out that there are DHS law enforcement agents whom DHS has confirmed committed domestic violence, you know, and were arrested for it, and yet they continue to carry their guns and perform their law enforcement responsibilities and have not been removed. That is a fact. But yeah, the bigger picture here is, you know, you see this information and you learn this stuff, I mean if you’re a watchdog official, your first impulse should be, people need to know this.

Maren: We’ve been talking a lot about how these federal employees have treated people outside of the organization: citizens, immigrants, and even spouses. But how are they treating each other?

As Nick and Adam were wrapping up their investigation on this domestic violence report, they stumbled upon another report, one that revealed even more problems at DHS and pointed to more coverups.

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One that never even made it out the door.

Nick Schwellenbach: Holy shit, they’ve been sitting on this stuff for months, years, or deleted this stuff. And it’s like, this is stuff the public needs to know about. This is stuff the department needs to know about so it can fix these problems.

Adam Zagorin: This is serious and real. Live human beings, flesh and blood are suffering. It’s a red flag. Pay attention.

SarahTurberville: Cuffari is certainly contributing to the ongoing impunity that these officials enjoy.

Former Border Patrol Agent, now activist, Jenn Budd: So obviously, you know, you know what this is on my eye. You know what this is on my lip. And yet none of you said anything and you’re supposed to be cops?

Maren: That’s next time on Bad Watchdog.

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Follow Bad Watchdog wherever you get your podcasts.

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Bad Watchdog is a production of Investigations and Research at the Project On Government Oversight. It’s written, produced, and hosted by me, Maren Machles, and based on investigations by Nick Schwellenbach and Adam Zagorin. Additional research by Julienne McClure. Edited by Julia Delacroix and Brandon Brockmyer. Fact checking by Amaya Phillips and Neil Gordon. This episode was mixed by Natalie Jablonski. Our theme music was written and recorded by Will Wrigley. POGO’s director of investigations and research is Brandon Brockmyer. POGO’s editorial director is Julia Delacroix. Find out more about our work to investigate and improve the federal government at www.pogo.org.

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