The Continuous Action — Episode 5 — Out of Control!

Walter Shaub: This podcast is sponsored by the Project On Government Oversight, a nonpartisan independent government watchdog.

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Virginia Heffernan: Welcome to The Continuous Action. I’m Virginia Heffernan.

Walter Shaub: And I’m Walt Shaub.

Virginia Heffernan: Today we are looking at the country’s largest law enforcement agency, that’s the dread and highly controversial CBP.

Walter Shaub: That’s Customs and Border Protection. CBP’s big. It’s got over 60,000 employees. And it’s one of the least transparent and least accountable law enforcement agencies in the country.

Virginia Heffernan: This is Episode 5 of the podcast. We’re calling it the “Out of Control” episode.

Walter Shaub: CBP is a highly militarized agency that lacks crucial safeguards.

Virginia Heffernan: And there’s a real culture of impunity there that shields CBP agents.

Walter Shaub: They rarely face disciplinary action for acts of brutality and negligence, and they almost never face prosecution for crimes.

Virginia Heffernan: One of our guests today is going to discuss how CBP has created what could be called cover-up teams — complete with omertà-style networks, lawsuit payoffs, and the silencing of whistleblowers. But first, Walt, you’re so good at this, give us the basics on CBP.

Walter Shaub: CBP’s a law enforcement agency, first and foremost. It’s got two main components, the Customs Service and the Border Patrol. The Customs Service staffs the ports of entries into the United States: The airports, the seaports — these are the officials who ask you questions when you get off an international flight, and they staff the land border crossings too.

Virginia Heffernan: Right. I mean, they’re civil servants, and that’s an imperfect part of the agency. But we really want to look at Border Patrol because they’re the self-important, heavily armed guys who ride around on horses and jeeps in the desert.

Walter Shaub: They work in remote locations, which means they’re out of sight most of the time with little supervision and few witnesses.

Virginia Heffernan: And this freedom from scrutiny seems to tilt into sadism at times. Outright sadism. While preparing for this episode, we watched a video that shows a Border Patrol agent dumping out water that was there to keep migrants from dying of thirst.

Walter Shaub: In the video, the agent taunts members of a humanitarian group called “No More Deaths” as they film him pouring out water, and he dares them to say they’re the ones who left the water. And for his part, he says he’s just picking up trash somebody left in the desert. As if his job’s to clean up litter.

Agent: Make sure you get a good shot. Picking up this trash somebody left on the trail. Not yours, is it? All you gotta do is tell me, is it yours? Not yours? You’re not going to tell me, huh?

Virginia Heffernan: You know, this reminds me a bit of Episode 1, where we discussed new laws that prohibit people from giving water to voters waiting in line, depriving people of water. As Janai Nelson said, it’s clearly dehumanizing.

Walter Shaub: Exactly. In another case, the government prosecuted a volunteer for offering food, water, and shelter to two migrants he encountered inside the United States. He was acquitted, but there was no guarantee he was going to be acquitted, and he could have gone to jail for 20 years. The first jury deadlocked, and the government tried him twice. It was the second jury that acquitted him.

Virginia Heffernan: In another part of the video we watched, we saw Border Patrol agents kicking jugs of water down a hill. Cruelty really is the point here.

Walter Shaub: Things get dark fast when you’re talking about CBP.

Virginia Heffernan: All too often, when the Border Patrol encounters civilians, the consequences get tragic.

Walter Shaub: I’ll give you an example from 2019. A Border Patrol agent admitted that he had intentionally struck a migrant with his government vehicle two years earlier. And not long before this assault, he texted a colleague that migrants were, quote, “subhuman shit unworthy of being kindling for a fire.” He also used the term “tonks.”

Virginia Heffernan: There’s debate, as I understand it, as to what that word means. Some claim it’s just an acronym for the made-up phrase “Territory of Origin Not Known.” Others say it’s a slur that’s supposed to sound like an officer’s flashlight cracking a skull.

Walter Shaub: I tend to suspect it’s the latter.

Virginia Heffernan: Yeah — and there’s plenty of evidence to suggest this kind of cruelty is rampant. ProPublica did an exposé on a secret Facebook group — like the 4chan of CBP — full of racist and misogynist comments. Investigations confirmed that dozens of its members were current and former CBP agents. And those were just the ones they could confirm.

Walter Shaub: The group had a total of 9,500 members. And nobody knows for sure how many were CBP officials. But the name of the group was “I am 10-15,” which is a law enforcement code, used when detaining individuals for unauthorized border crossings.

Virginia Heffernan: You know, it’s just — good old Facebook, right? I mean it wasn’t even the only group of its kind. There was another one called “The Real CBP Nation.”

Walter Shaub: One post in that other group read, quote, “feeling kind of cute today, might separate some families.”

Virginia Heffernan: Oh my God. CBP was the agency that separated children and babies from their parents at the border during the last administration.

Walter Shaub: We’re not going to compound the harm by reading more of those disgusting messages, but they were bad.

Virginia Heffernan: Yeah, there were wisecracks about migrants dying, there were sexually explicit illustrations of Representative Alexandria Ocasio-Cortez, and on and on.

Walter Shaub: For me, one of the worst parts was that the head of the Border Patrol at the time, Carla Provost, was herself a member of the “I am 10-15” group.

Virginia Heffernan: Let’s let our first guest to give us some more background on CBP. She’s one of your colleagues at POGO.

Walter Shaub: Sarah Turberville is the director of The Constitution Project at POGO. As the name suggests, her work focuses on constitutional issues and, in particular, government abuses that affect individual rights.

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Sarah Turberville: CBP stands for Customs and Border Protection, and it is a component of the Department of Homeland Security. And what a lot of people don't realize is that CBP is the largest law enforcement agency in the country. It’s larger than NYPD. It’s larger than LAPD. It’s larger than any other federal law enforcement entity. But what’s maybe most concerning about CBP is that it also is one of the least accountable law enforcement agencies in the country.

It was sort of cobbled together after September 11th, when the Department of Homeland Security was created, and it quickly grew without very many guardrails on the accountability of the agents that would begin to work for the entity or a real path for what recruitment and training should look like for agencies within that component.

It’s got an extraordinary, expansive jurisdiction across the United States — not just sort of on the border, which is what I think a lot of people typically think of when they think of CBP. And the lack of accountability has contributed to a number of abuses, a sort of culture of impunity at the agency. Migrants have been subjected to horrific abuses and have been either abused or even killed by border patrol agents, for example, with very little accountability following that. We’ve seen sexual misconduct and domestic violence at the hands of CBP officers, which POGO recently, of course, investigated, kind of your run of the mill corruption within CBP as well.

Walter Shaub: And you’ve written that CBP officers and agents seem to view themselves as part of a paramilitary organization.

Sarah Turberville: One of the core problems now is that the mission of CBP, its sort of stated mission, and how it recruits its agents, and what their expectations are, don’t line up to what the humanitarian demands are on the border now. So, if you’re thinking about who’s attracted to become, a Border Patrol agent, they’re not going to be folks that are necessarily that interested in taking care of asylum seekers, which is, you know, a huge piece of the job now, you know, looking after women and children and families. And even, in fact, Border Patrol officers themselves have said, “This is not what we signed up for.”

Walter Shaub: Can you tell me a little bit more about the lack of accountability at CBP?

Sarah Turberville: Sure. So that’s, that’s a big question. because there’s a few different facets to that. There’s internal accountability and there’s external accountability. Something that makes CBP — and border patrol in particular — very different from most law enforcement agencies in the country is that there’s not really a rights-bearing constituency that they serve. In addition to the fact that they operate in, just geographically, a very large swath of land and there’s not a lot of eyes and ears on what they’re doing.

So, if you combine the fact with, you know, the people who typically come into interaction with Border Patrol are inherently people who have fewer rights, because they’re migrants, and because there are not sort of ways to really see what those interactions look like, then that that certainly contributes to impunity. So that’s not at all what, what one would see in a major metropolitan area, right? I mean, even, even some leadership within customs and border protect protection, people who used to run, like, the internal affairs entity at CBP have said that if the kind of stuff that’s happening within CBP was happening and a major metropolitan area, you know, that law enforcement agency would be under federal court supervision. I mean, that’s, that’s what would be happening. But that is not the case because of the way that because of CBP’s jurisdiction and the way that it currently operates. So, I think there’s just kind of like an inherent limitation in accountability because of that.

Internally, there’s a few different mechanisms that are supposed to be providing measures of accountability within CBP. So, you know, you think about the inspector general, or you think about the Office of Professional Responsibility, which is a fancy word for internal affairs at CBP. And what many reports and investigations have found is that those two entities are just woefully inadequate at rooting out corruption and rooting out abuses and holding people to account.

And then on the external side, you have Congress. And because DHS’s jurisdiction is so expansive, there’s almost a hundred congressional committees that claim some kind of oversight responsibility for the agency. Which means — the flip side of looking at that is that no one’s really conducting sort of rigorous oversight of the agency because it’s so diffuse, and it’s just far too inconsistent to be meaningful.

And, of course, there’s a bit of a political problem here too, where too often our politicians look at CBP as an immigration agency, when fundamentally it’s a law enforcement one. But, you know, they’re able to sort of use immigration as an effective political cudgel. And that does, I think, make political leaders shy away from aggressively overseeing this agency.

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Virginia Heffernan: This culture of impunity is just so dangerous. People keep skating. The results have been tragic.

Walter Shaub: Virginia, I do a newsletter for POGO, called The Bridge, and last November, I wrote about a 15-year-old boy from Juarez, Mexico. His name was Sergio Hernández Güereca. Sergio’s mom says he liked to play soccer and he got good grades. But that ended when a CBP agent shot him in the face, across the border.

Virginia Heffernan: Across the border?

Walter Shaub: Yeah. Sergio wasn’t even in the United States. He was on the Mexico side of a giant concrete culvert that runs between Juarez and El Paso. That’s where the Rio Grande runs when there’s water, which often there isn’t. And Sergio’s family says he and his friends liked to dare each other to run across the culvert and touch the fence on the U.S. side, then run back. That’s what the family says Sergio was doing when he was killed.

The CBP agent who shot him in the face has a different story. He said Sergio was throwing rocks at him. And that’s the story the government ran with, until a Mexican TV station released a cell phone video that shows the agent dragging one boy along the culvert and shooting at the others as they ran back to Mexico. The video doesn’t show Sergio throwing any rocks.

Virginia Heffernan: What happened to the agent in this case?

Walter Shaub: Nothing. Absolutely nothing. You know, a Mexican prosecutor indicted him on a charge of murder because the killing occurred on Mexican soil, and the U.S. government refused to extradite him for trial.

Virginia Heffernan: This business about throwing rocks seems to be a familiar refrain for CBP. A Border Patrol agent killed man named Carmelo Cruz-Marcos last February. The agent said that after he and Cruz struggled, Cruz was about six feet away, picked up a rock and made kind of a throwing motion. The agent, in return, shot four times, including twice in the face. The agent said he feared for his life.

Walter Shaub: Ah, the magic words for law enforcement, “I feared for my life.”

Virginia Heffernan: An article from May 12 even said migrants who Cruz was traveling with, who were interviewed by country officials, provided even more chilling version of events. One of them claimed that the agents appeared to move Cruz’s body after he was killed and then that the agent’s partner apparently goaded him — or told him, I guess — that things would be fine so long as he said he was scared, and that Cruz threatened him with a rock.

Walter Shaub: Geez.

Virginia Heffernan: The government and the agent dispute that account. The local authorities ruled it self-defense. We’ll put a link to the article in the show notes so you can read about it yourself. But the reason I bring this up is that the article says that the Border Patrol sent something called a “critical incident team” to the scene. Our next guest is going to talk about these critical incident teams. They’re part of a kind of cover-up network that seems very entrenched in CBP.

Vicki Gaubeca: My name is Vicki Gaubeca. I’m the director of the Southern Border Communities Coalition.

Walter Shaub: Can you tell us a little bit about these critical incident teams?

Vicki Gaubeca: Sure. I mean, they’re known by various names. We sort of picked “critical incident teams” to sort of use as the umbrella term for them, but they call themselves many, many — they go by different names, for example, “situation incident teams” or “evidence collection teams,” or whatever. But basically, these units are comprised of Border Patrol agents themselves. They’re not authorized by Congress to conduct any kind of criminal investigation. They’ve all of a sudden become part of these teams that investigate use-of-force incidents or other type of critical incidents. And they don’t do it because they’re trying to protect the public. As we’ve said, they’re basically trying to protect the Border Patrol agent that was involved in that incident.

So, this, this is extraordinarily concerning, because agents should not be in the business of investigating themselves. There should be a, a firewall between the agents or the officials who are part of a use-of-force incident and those that investigate the case. And it turns out — I don’t know if you know much about the background of how we came across these — but you know, we’ve been looking at the Border Patrol and, and, you know, trying to hold Customs and Border Protection accountable for a number of years now. And we were preparing a case along with investigators, law students from Berkeley law school, and also, we had an investigative team that was made up of former Border Patrol agents and former CBP officials. And we start looking into these documents in preparation for a hearing in front of the Inter-American Commission on Human Rights.

And the case is specifically on the case of Anastasio Hernández Rojas. And in there, we started seeing this evidence of these critical incident teams and gathering teams that — we’re like, “What is that?” And so, we started looking more into police reports and court documents and started to really unearth several documents that explicitly show that these teams were not only conducting investigations, but they were doing things like tampering with evidence and, and tampering with witnesses, sometimes destroying evidence outright.

And we began to realize that they were the root cause for the impunity that Border Patrol agents enjoy after they commit an act of, basically, what is murder. You know, there hasn’t been a single off-duty Border Patrol agent who has been held accountable for fatal use of force, regardless of case or situation.

Walter Shaub: I mean, that’s just amazing because CBP has an Office of Professional Responsibility and they used to be called internal affairs. So that’s the office responsible for investigating misconduct by CBP officials.

Vicki Gaubeca: Yeah. Well, so to understand how this happened, you have to go back to the beginning, before Border Patrol was actually even part of Customs and Border Protection. Before 9/11, there was a standalone agency under the Department of — I think it was Justice because the, the OFO [Office of Field Operations] side, or the CBP side was actually under Treasury, and there were some agriculture — Department of Agriculture employees. And after, after 9/11, they kind of, smooshed all of these organizations together under Customs and Border Protection.

So, these, these shadow units existed back in the day when it was just Border Patrol out on the border region. Technically speaking, there was an internal affairs that did investigate. But it’s not really clear who they reported to. And that’s what is so crazy about these shadow units, is that these agents report to their supervisors, or to the sector chief, or even to the Border Patrol chief him- or herself, directly.

So, they don’t, they’re, they’re actually out of the reporting typical, standard reporting line that you would see for anything like internal affairs. They would — people who are dedicated criminal investigators for internal affairs, or in this case, the Office of Professional Responsibility, report to the person who’s the head of the Office of Professional Responsibility.

So, this was just another way to see how rogue and random they were. They were basically out in the field, conducting these investigations with no criminal investigative authority, no — you know, there was, they had no legal authority to conduct these investigations. And often they would serve as the reason why these agents did not face any sort of accountability.

Walter Shaub: Wow.

Vicki Guebaca: And, yeah, so, so it’s actually like for three decades they’ve been doing this. It only became more obvious after they established the Office of Professional Responsibility. And still, I think even then weren’t aware of the extent to which these shadow units were participating in these investigations.

Walter Shaub: It seems like CBP has tried to operate these teams below the radar. I mean, is this basically a shadow police force?

Vicki Gaubeca: It absolutely is. I mean, I think that there have been external reviews back under the administration of Obama, where the CBP integrity advisory panel actually found these and said that they, that, “Okay, well, if you have these investigative units, you should include them in part of your use-of-force handbook.”

Well, to this date, that recommendation hasn’t been implemented, because I think they realize that if they put it down on paper, then it would expose them to — to people just knowing that these units weren’t legitimate, and that they weren’t lawfully conducting investigations.

Walter Shaub: I mean, there's no way to write the procedure without flagging that there are two different offices that are supposedly going to be investigating an incident.

Vicki Gaubeca: Exactly.

Walter Shaub: So how has the involvement of critical incident teams played out in real life when an officer has killed someone?

Vicki Gaubeca: Well, we’ve seen it in several cases. We saw, for example, in the Anastasio Hernández Rojas case, this was a case in 2010, where this person was hogtied, and beaten, and tazed, I think like three or four times, if not more. He was surrounded by both Border Patrol agents and Field Operations officers. They kept telling him to stop resisting, yet there are at least two videos that established that he was not resisting, that he was outnumbered. And then he basically died of his injuries a couple days later.

There was the case of Jose Antonio Elena Rodriguez and that was a case in Nogales, Sonora, where this young boy was just walking — I think he was walking home to, you know, have a snack with his brother or something. And an agent alleged that he was throwing rocks at him. He was on the other side — in, standing on the U.S. side, on the, on top of a cliff, on top of a, you know, there was a wall on top of a cliff, and this agent drew his weapon and shot at him. We think he like, you know, used two, two magazine clips, which totaled like around at least 14 shots, 10 of which hit him, mostly in his back and head. So, it, it just, that case is probably one of the more alarming ones.

I mean, all of them are alarming and unjustified, but in this case, they, these critical incident teams drove all over. They showed up and they started driving all over the, the, the crime scene on the U.S. side. They didn’t gather evidence in an adequate way. They gathered all these rocks that allegedly Jose Antonio Elena was throwing at them, but they didn’t test them for DNA or anything like that. They also withheld the video and then later destroyed it, saying it was past the time of being held.

There are actual investigators who said they were part of these critical incident teams that had investigated the scene and that had gotten their training in the field. In other words, they did not go to uh, FLETC, like a Federal Law Enforcement Training Center, to get their training. They were just being trained in the field by their supervisors or somebody else. But, definitely, these individuals did not have the proper training. And so, they’re basically rank and file agents investigating themselves.

Walter Shaub: Wow. That’s just shocking stuff. So last month, finally, CBP announced that it plans to get rid of these critical incident teams, which will be interesting to try to do since they don’t officially exist. But supposedly they’re going to get rid of these groups that don’t exist. Are you hopeful this is a step in the right direction, or do we need to wait to see how it plays out?

Vicki Gaubeca: I mean, I think we, we should celebrate a little, but we need to be very aware about how they’re implementing this. One of our concerns is that they may hire individuals who are part of these critical incident teams under the Office of Professional Responsibility. What we know for sure is that whoever they hire has to have the right training, and has to swear an oath, and has to conduct these investigations with integrity.

But also, we want to make sure they’re properly vetted, that they haven’t participated in any of the cases where we see clear evidence of malfeasance. Those individuals should be considered people of interest to be prosecuted for obstruction of justice. And, and so that is our hope. We don’t want to just see this forward moving action where they say, “Oh, these teams will no longer be put together, they’re dissolved effective October 1.” We also want to see them take responsibility for the agents who were, who were part of obstruction of justice. We want them to continue the cases that they’re currently evaluating, but to investigate them adequately and appropriately. And an easy example of that is the case of Marisol García [Alcantara], who was shot in the head by a Border Patrol agent in Nogales, Arizona, and immediately the critical incident team took over, cordoned off the area, and then told Nogales Police Department to just direct traffic and keep, you know — and, and the reality is that the Nogales Police Department should have been, you know, that was geographically, their jurisdiction. They should have been part of the investigation.

So, we want to see that case looked at and evaluated to see if, you know, if Marisol deserves some kind of justice for what happened to her, because she still has fragments of the bullet that was shot in her head that interferes with her ability to keep a job. So, I think it’s very important to find justice in that case.

And then furthermore, I think that some cases that have been closed by agencies, or even by the court, should possibly be reopened. And Anastasio Hernández Rojas, Jose Antonio Elena Rodriguez, the case of Claudia Patricia Gonzalez Gomez – that’s, that today is her fourth anniversary of being shot by a Border Patrol agent. And we still don’t know what happened there. So, this kind of impunity needs to cease, and justice and closure needs to be found for family members and victims of this kind of abuse.

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Virginia Heffernan: So, I think we’re getting a pretty clear picture of how CBP operates.

Walter Shaub: Yeah. That’s why we’re calling this the “Out of Control” episode.

Virginia Heffernan: We’re going to talk to another of your POGO colleagues, Nick Schwellenbach. He published what I found to be a fascinating and disturbing investigation on the culture of misogyny and violence inside CBP.

Walter Shaub: Nick, you recently did a report on some issues at Homeland Security. Can you tell us about that?

Nick Schwellenbach: So, about a month or so ago I, and my co-author Adam Zagorin published an investigative story on previously undisclosed records of widespread misconduct inside the Department of Homeland Security, where more than one out of three respondents to a survey — and this is more than 10,000 people who work at the Department of Homeland Security — said that they had faced sexual misconduct in the workplace.

This ranged from rape to, you know, “locker room-type banter” and everything in between, you know, in the past several years. These findings have been bottled up inside the Department of Homeland Security’s watchdog office for years and have never seen the light a day until we published our story last month. These records also show that most people who experienced this misconduct said that they never reported it. They didn’t report it for various reasons, they said. They said, one, they might face retaliation. Two, they didn't think anything would be done. Some said, you know, they thought the misconduct in some cases was too minor to report. But of the people — and this was less than half of the people who did report it — of those people who said they reported the misconduct, nearly half of them said that they faced negative career consequences as a result. In other words, they were retaliated, or they felt they were retaliated, for reporting sexual misconduct in the workplace.

This wasn’t all that we found. We also found that there were records of domestic violence, confirmed instances of domestic violence by DHS law enforcement personnel, that didn’t lead to any substantial discipline against those law enforcement agents. Now, domestic violence is something that occurs off duty, but it’s highly relevant to the job of a law enforcement agent. And there’s a law in the books that says if you’re convicted of a domestic violence-related crime, you have your gun taken away. And if you’re inside a DHS law enforcement component, those components also have separate standards that say that you can be let go, even if you’re not convicted, for not adhering to your agency’s standards. These findings have never seen the light a day. They’ve been bottled up inside of DHS, and we finally released them last month.

Walter Shaub: So, you talked about one CBP officer who was actually arrested for allegedly punching his wife in the face. And he initially faced some minor disciplinary action but was left on the job.

Nick Schwellenbach: He faced an investigation. Then they returned his gun to him, and he was able to return to the job. Then, he was arrested for violently assaulting another woman, he had his gun, again, temporarily removed from his possession. And after an investigation, the gun was returned, and he remains on the job in a law enforcement capacity.

And so, this case, along with this broader set of data, showcase what we and many others, including some former internal affairs officials from the Department of Homeland Security, view as a widespread culture of impunity when it comes to misconduct within the ranks of Customs and Border Protection in particular.

Virginia Heffernan: I found this report not just horrifying, but also instructive. Because one of the problems with border control, and other professions that require certain use of force have had this issue too — including corrections and some police — that there’s a labor shortage. There’s what you’ve identified as a struggle to recruit top-notch candidates with clean records.

Nick Schwellenbach: You’ve sort of hit the nail on the head and zeroed in on a really critical issue. The Border Patrol in particular works in remote locations, often along the southwest border. These aren’t necessarily the most desirable places to work for a lot of people. They’re often away, quite a distance from a major metropolitan area. So, you have to find people who want to live there, who are willing to live there. So that, that’s a hurdle. That’s one hurdle among many.

And Border Patrol in particular has long had these issues. I mean, they go back decades. But, under the George W. Bush administration, there was this huge expansion of the Border Patrol in particular. Some of this was in response to 9/11. The Border Patrol’s ranks really exploded under George W. Bush and into the early Obama years. And along with that explosion of their ranks, which came with more appropriations from Congress, they struggled to hire people.

And they ended up lowering their standards under the George W. Bush administration. They also ended up sort of loosening some of the vetting that they did to look into their backgrounds. And as a result of this, they hired a lot of bad apples that that they probably should not have hired in the first place.

Walter Shaub: You know, you mentioned the remoteness of the work, too. These Border Patrol agents cover a wide range. And so, it seems like a lot of the time individuals or teams are in remote locations where it's difficult to supervise them.

Nick Schwellenbach: Part of the issue is with the supervisors, though. It’s not just that supervisors are completely in the dark. Now, when we were reporting out this story, we talked to, you know, several internal affairs people and people who worked inside of CBP, and they pointed out a trend of — often the supervisors at the local level, especially down on the southwest border, they often would try to protect employees, especially if they liked the employee.

So, what people told us — this is on the record — is they said a lot of times these supervisors within the Border Patrol, the local level supervisors, would call up their friends within local law enforcement and pull strings. You know, “Look, my employee, he got in an altercation, he made a mistake. Do you really need to charge him with domestic violence, can you charge him with something else?” Because if he's successfully convicted of domestic violence, because of the Lautenberg amendment, which is a law passed in the mid-nineties, they cannot lawfully carry a gun anymore. And as a result, that’s a career-ender if you’re in law enforcement.

Another tactic that some of these supervisors sometimes use is they’ll call up the spouses, “Hey, if you press charges, your husband is going to lose his job, and you won’t have his income anymore.” And that’s not a tactic that’s unique to the Border Patrol or to CBP. It’s used in other contexts within law enforcement. But it’s something that sources told us on the record happens. And it happens all the time.

Virginia Heffernan: Maybe you can tell us a little bit about the employee who had been propositioned for sex and then was paid off, essentially. And what you think the consequences of that are, for transparency in government.

Nick Schwellenbach: Yeah. So, one of the passages in an unreleased report discusses a case of a woman who worked inside of Customs and Border Patrol who, you know, filed a complaint that alleged that her supervisor had propositioned her for sex multiple times. And, you know, she said that because she denied his advances, she then faced negative career consequences — you know, wasn’t given opportunities to advance, was denied training opportunities — and she filed an equal employment opportunity complaint alleging that, you know, she was the victim of, you know, sexual discrimination because she refused his advances and then faced negative career consequences.

The agency settled with her for more than a quarter million dollars, which is a substantial financial settlement in the context of employment claims within the federal government. That’s a big settlement. It’s not, you know, a couple thousand dollars or, you know, “We’ll move you to a different field office.” That’s, that’s a big deal. Yet watchdog officials who looked into this case found no records that the supervisor who allegedly engaged in all this activity was ever investigated, or ever disciplined.

So, if an agency’s willing to pay, you know, a victim a quarter million dollars, but takes no action against the person who engaged in blatant, egregious sexual misconduct in the workplace? I mean, what signal does that send to everyone else? Does the agency take this seriously? It sends the message that the agency doesn’t take this seriously at all. And it’s just paying out this money to make the problem go away.

Virginia Heffernan: And also, it’s taxpayer money!

Nick Schwellenbach: Yeah. I mean, the settlement itself may have been warranted, but they should terminate that supervisor if these allegations are at all true.

Virginia Heffernan: Yeah.

Nick Schwellenbach: I mean, that person should absolutely not even be a supervisor. They shouldn’t even be an employee at CBP.

Virginia Heffernan: So, I’m thinking of the quote that you turned up, the “better to be one of the guys than quote ‘that girl,’” which is one of the one of the women, I think, saying this is the reason not to be a whistleblower, not to complain. Right? Just be sort of tough and take it. Yes?

Nick Schwellenbach: Absolutely. So, I think that’s a big part of the story here, is how imbalanced the workforces are. And you have this sort of like locker room-like culture in some of these agencies where it’s mostly men — and border protection is sort of the most extreme example of this, where 95% of their agents are men, so you only have 5% women. And this quote struck me when I read it in this draft report, it was like, wow, that is such a telling quote where this woman is saying, like, “You don’t want to be the one raising complaints, because they’re going to exclude you. You’re not going to be seen as part of a team.”

And I think there’s sort of the, the seeds of a solution here, too, which is — I think we do need more gender balance in these organizations

Virginia Heffernan: And especially in leadership roles, right? I mean, more female supervisors.

Nick Schwellenbach: Absolutely.

Virginia Heffernan: More women and non-male employees making decisions, making hiring decisions. I mean, one last thing here is that it seems like there’s a case to be made for an extremely hostile work environment for women. I mean, “hostile” understates the case if you are living in an almost terrorist relation with men known to actually rape women. As a woman, that’s not a place you want to work. That’s not a whisper network that he might grope you; that’s — you’re working with violent sexual offenders. That seems like a dysfunctional workplace in the extreme, no?

Nick Schwellenbach: Yeah, you’re absolutely right. Frankly, there have been some Border Patrol agents who have been prosecuted for rape, sexual assault.

You know, there was a case of a Border Patrol agent named Mark Martinez. This didn’t make its way into our story, but it was a fascinating and very disturbing case in my opinion. In this case of Mark Martinez, he was hired in the Border Patrol in the eighties and in his first few years in the Border Patrol, he was accused, and he was a prime suspect in the murder of two individuals down in Arizona.

For various reasons, he was never prosecuted. A local alt-weekly did a huge story on him down in Arizona, and his own supervisor, a man named Ron Saunders — Ron Saunders tried to get him removed from the Border Patrol, because not only was he a suspect in a double murder but his girlfriend took out a restraining order against him for his violence against her. He had been arrested multiple times for drunk driving. And Ron Saunders felt, you know it was completely inappropriate for him to work as a Border Patrol agent and for him to carry a government-issued gun.

So, Ron Saunders tried to get him removed from the Border Patrol. He was unsuccessful, and Mark Martinez continued to work in the Border Patrol — and not only continue to work in the Border Patrol, then he moved to something called BORTAC, which is this tactical unit within the Border Patrol, heavily armed. They get deployed to — they were originally created to respond to riots inside of immigrant detention centers. And they most notably were deployed to Portland in the summer of 2020, where they were associated with these sort of “snatch vans.”

And then Mark Martinez retired from the Border Patrol a couple years ago. Shortly after he retired from the Border Patrol, killed his wife, committed suicide. And within weeks after that, the local law enforcement officials down in Arizona reopened the cold case into the double murder. We don’t know if Mark Martinez killed those individuals, but it’s a very disturbing case that shows that it’s very challenging to remove these people, given the way the Border Patrol works and has worked for decades.

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Virginia Heffernan: So, Walt, what is the solution? This, after all, is The Continuous Action, and you and I persist in talking about how to make things better.

Walter Shaub: It’s pretty bleak. But Sarah Tuberville, who we talked to earlier, has been studying the issue, and I asked her what can be done.

Sarah Turberville: For one thing, we can look at some of the recommendations that DHS itself has proffered for CBP. Back in 2016, DHS pulled together a, a special task force that was led by former NYPD commissioner Bill Bratton, as well as the former commissioner of the DEA — right, so these are people who are, you know, have some law enforcement bona fides, right? — to take sort of an emergency look at CBP because there was such a concern about its susceptibility to corruption.

And one of the major recommendations that they had was that there needs to be greater capacity for internal investigations. And that those positions should be filled by independent personnel, not people who come from the field, who, you know, previously worked for Border Patrol or whatever else. Because the ratio of internal affairs investigators to CBP officers is not at all what it should be when you compare it to other major law enforcement agencies. So that’s a small thing, but that’s a really important thing for accountability.

I think Congress needs to look at structural change too, because why have a paramilitary organization conducting asylum processing? That doesn’t make any sense. And it’s not something the Border Patrol wants to be doing either. There has to be some kind of separation from the agents in the field and the leadership in the field from those with ultimate responsibility for discipline, because for these serious cases, there needs to be, like, the final decision-making authority needs to come from the top, probably in headquarters. Not out in the field, because there’s just too much close association with the misconduct at hand.

One of the things that we’ve recommended is that there be some way to investigate these abuses in a systemic way. As I mentioned earlier, if this was a state or local law enforcement agency, the Department of Justice could come in and conduct a pattern or practice investigation into what’s going on with these serious civil rights abuses. That is not what’s happening at CBP. And so, you know, frankly, I don’t see any reason why DOJ couldn't conduct its own pattern or practice investigation of CBP and Border Patrol. I don't think it’s a legal problem. I think it’s a political one for the agency, right?

I think, you know, just more basic accountability mechanisms, some of which CBP has begun to undertake, to their credit, like body-worn cameras. I mean, I can’t think of an agency where body-worn cameras would be more important than Border Patrol. And CBP is rolling those out slowly. We do have some concerns with the policy that’s in effect. You know, we want to make sure that the camera program doesn’t become, kind of, a tool of cover up rather than a tool of accountability. But certainly, you know, having all those officers having cameras rolling would make a big difference.

And then we have to fix the law. There’s, you know, as I, I spoke to a number of problems with the expansive jurisdiction of the agency, and that’s something that Congress has the authority to rein in. And then there’s this huge, gaping loophole for federal law enforcement accountability, because people whose civil rights have been violated by federal law enforcement officials can’t get their foot in the courthouse door. And so, something that we at POGO have been working on is to create a remedy that actually allows for people to sue federal law enforcement agents for violations of their civil rights.

Walter Shaub: Yeah, let’s clarify that one a little bit for folks. Can you just set up a little background on what the obstacle is? It’s really a sovereign immunity issue.

Sarah Turberville: So, if state or local law enforcement engage in conduct that violates your civil rights, whether that be illegally arresting you at a protest, or if it’s shooting you in the back, you — or a family member, if you’ve died as a result of your injuries — can sue the government for redress. But that same vehicle does not exist if it’s a federal law enforcement agent.

The Supreme Court had for a while permitted people to just kind of sue directly under the Constitution for a violation of due process. But they have slowly shut that, you know, it’s sort of a death by a thousand cuts to that jurisprudence that was initially set out in a case called Bivins. So Bivins basically doesn’t really exist anymore, because the Supreme court has slowly strangled it over the last three decades. And what we are advocating for is actually just a federal statutory right to be able to sue for a violation of your rights when the perpetrator has been a federal law enforcement agent.

Walter Shaub: Great. I think that’s a good background for folks.

Sarah Turberville: Yeah. I mean, I think chief among all these recommendations is oversight and investigations — and oversight and investigations by Congress.

There’s no shortage of specific instances that need to be investigated. We would like to see Congress take a very close look at the gaps in the complaints and discipline process, because numerous NGOs have filed complaints on behalf of migrants or other people who have been victimized by CBP agents. And have those complaints have gone nowhere. In some cases, they haven’t even received acknowledgement from CBP that the complaint was filed in the first place.

In fact, POGO, we filed a complaint with CBP a couple of months ago out of concerns about CBP's possible illegal involvement with an operation down in Texas, called Operation Lone Star, that the governor of Texas instigated back in early 2021 and are concerned about some illegal activity that, that border patrol agents might be involved in there. And we’ve received no acknowledgment of the complaint that we filed.

Walter Shaub: Wow. They haven’t even acknowledged receipt of it.

Sarah Turberville: They have not. And this is a consistent problem. And, you know, it certainly gives those who are victimized by misconduct the impression that nothing is happening. And, if in fact nothing is happening, then, of course, it’s just contributing to this culture of impunity at the agency. And that is something that Congress needs to take a very close look at.

And then there’s other, you know, other kind of basic issues around the mission of the agency as it relates to the current demands on the border, if there might be ways of restructuring the agency so that it could function more efficiently and appropriately to the humanitarian demands on the border. Looking at this gender disparity problem, I mean, I think it probably blows a lot of people’s minds to know that only 5% of agents in Border Patrol are women. And, you know, what kind of an unhealthy culture does that create at CBP?

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Virginia Heffernan: There’s just so much work to do to reform this. Two-thirds of the people in this country live inside the territory where CBP claims to have jurisdiction. We saw how that worked when the Trump administration sent CBP into Portland, Oregon, during the protests in 2020.

Walter Shaub: That’s when agents from CBP’s special tactical unit pulled civilians into unmarked vans.

Virginia Heffernan: I mean “special tactical” just means militarized. This is BORTAC.

Walter Shaub: Yeah, BORTAC is the unit’s name.

Virginia Heffernan: They’re like the swat team, I guess, for CBP, except without any of the constitutional constraints that would apply to a swat team.

Walter Shaub: And that’s exactly the problem. CBP is highly militarized, well, BORTAC is highly militarized even by CBP standards. They’re supposedly the elite force for CBP, but I don’t think there’s anything elite about brute force, high tech gear, and a lack of accountability. Where are the constraints? Where are the safeguards?

Virginia Heffernan: You know, in the videos I saw, it looks like the agents aren’t even wearing any insignia to identify them as part of a government agency. These guys could’ve been anyone. They could have been terrorists. We’ve seen extremist counter-protesters dressed up in paramilitary gear like that.

Walter Shaub: How’s anybody supposed to know they’re not just being kidnapped by some militia group?

Virginia Heffernan: And what happens when the next authoritarian president starts sending them all over the country?

Walter Shaub: I think ultimately what happened in Portland was just the rest of the country getting a taste of what border communities have had to deal with all the time from CBP.

Virginia Heffernan: I hadn’t even thought of that. I mean this group is something that begs for vigorous congressional oversight, as we’ve been saying along. Elected officials need to look at some of these organizations. And CBP as a whole needs this too.

Walter Shaub: And that’s the point of this episode. CBP is a rogue agency in dire need of oversight.

Virginia Heffernan: It’s not the most romantic word in the world, “oversight,” but it is what this series has been about: How important it is to hold rogue actors, and rogue organizations, and rogue agencies to account, and promote the democracy we deserve.

Walter Shaub: Amen.

Virginia Heffernan: That’s it for this episode. In fact, that’s it for this five-episode mini-series. I hope you’ve enjoyed The Continuous Action. Walt, I have especially enjoyed doing this with you. It’s been difficult material at times. But it’s so important that we keep addressing how we can reform our democracy.

Walter Shaub: And do the work of democracy itself as citizens. Virginia, it’s been a delight to work with you and our producer, Myron, and Bubba Bach. Folks, if you enjoyed this series, you can help by telling a friend to give it listen. And be sure to give us a good rating on your podcast platform.

Virginia Heffernan: Thanks so much for listening. The Continuous Action is hosted by me, Virginia Heffernan, and Walter Shaub. Myron Kaplan is our producer, with help from Bubba Bach. And our sponsor, as always, is the Project On Government Oversight, that’s POGO. Thank you, POGO!