The Honorable Mark Amodei Chairman Subcommittee on Homeland Security House Committee on Appropriations H-307 The Capitol Washington, DC 20515
The Honorable Chris Murphy Chair Subcommittee on Homeland Security Senate Committee on Appropriations Room S-128, The Capitol Washington, DC 20510
The Honorable Lauren Underwood Ranking Member Subcommittee on Homeland Security House Committee on Appropriations 1036 Longworth House Office Building Washington, DC 20515
The Honorable Katie Britt Ranking Member Subcommittee on Homeland Security Senate Committee on Appropriations Room S-128, The Capitol Washington, DC 20510
Dear Chairman Amodei, Ranking Member Underwood, Chair Murphy, and Ranking Member Britt:
The Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles. POGO submits the enclosed requests for report language for the Department of Homeland Security to be included in the fiscal year 2025 Homeland Security appropriations bill.
Thank you for considering these proposals to strengthen government accountability and oversight.
Sincerely,
Sarah E. Turberville Director, The Constitution Project Project On Government Oversight
Enclosures: 2
cc:
The Honorable Tom Cole, Chairman, House Committee on Appropriations The Honorable Patty Murray, Chair, Senate Committee on Appropriations The Honorable Rosa DeLauro, Ranking Member, House Committee on Appropriations The Honorable Susan Collins, Vice Chair, Senate Committee on Appropriations
Transparency at Customs and Border Protection
Appropriations Committee:Homeland Security Agency: Department of Homeland Security Account: Customs and Border Protection Type of Request: Report Language
Background
Customs and Border Protection (CBP) has increased the information it provides to Congress and the public over the past few years in response to report language in prior appropriations bills, but given the agency’s vast size and jurisdiction, as well as its lack of well-established civilian and other effective oversight mechanisms, further changes are necessary to meet basic transparency requirements.1
First, unlike Immigration and Customs Enforcement (ICE), CBP does not release the names of individuals who die in its custody or after CBP uses of force. These names sometimes become public through press reports, but they often never become known to the public, which impedes investigations into the deaths and is dehumanizing to victims. While some delays may be necessary and appropriate to ensure notification to next of kin and consular authorities, there is no reason not to publicly acknowledge the names of all CBP-related deaths.
Second, because CBP detention centers are intended only for short-term processing, they are subject to lower standards and less outside oversight than almost any other government jail.2 Visits by attorneys are completely forbidden, phone access is severely restricted,3 and there is no system for family members to locate or contact a detained person.4 This opacity makes it essential for CBP to regularly release information about how many people it is detaining, for how long, and under what conditions. This is particularly crucial when it comes to populations such as children, families, and pregnant and medically vulnerable individuals. Currently that information is available to CBP officials but is not regularly released to Congress or the public.5
Third, CBP’s Office of Professional Responsibility has expanded greatly in size in recent years as it takes on responsibility for responding to serious incidents and investigating uses of force, allegations of misconduct, and deaths in custody.6 However, the office’s investigative reports are rarely made public, making it impossible to know whether the agency is fulfilling its new mandate.7 While the Office of Professional Responsibility’s investigations can implicate privacy issues, some degree of public disclosure is essential to ensure that it is fulfilling its mission, particularly with regard to investigations of uses of force, deaths in custody, agency leadership, and other matters of high public interest.8
Fourth, the entire life cycle of complaints at CBP — from filing through acknowledgment, investigation, and outcome — still fails to meet basic standards of responsiveness and redress.9 In 2021, the House Committee on Oversight and Government Reform also documented core deficiencies in CBP’s disciplinary process, even in cases when the agency’s Discipline Review Board determined that there was serious misconduct.10 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 the Department of Homeland Security (DHS).11 In response to these failings, DHS must be required to provide regular reports to complainants, including acknowledgment of receipt and final disposition. Public accounting of discipline imposed must also be improved.
Proposed Report Language
Not later than 180 days after the enactment of this Act, CBP shall
include the names of the deceased in future death in custody reporting notifications (except to the extent that limited delays are necessary for family or consular notification);
on a monthly basis, release records about individuals in Border Patrol and Office of Field Operations custody, broken down by sector, including:
information about the percentage of detention capacity filled in each sector;
the frequency of unaccompanied children, families, pregnant, or medically vulnerable individuals being held for over 24, 48, 72, 144, and 216 hours;
the frequency of individuals being held for over 72, 144, and 216 hours;
statistics on people going through the credible-fear interview process in CBP custody, including the average time spent in detention, maximum time spent in detention, the percentage represented by council, and the percentage found to have established credible fear; and
a list of CBP facilities that were over capacity or understaffed, including understaffing of medical personnel, and the number of days that they were overcapacity/understaffed.
release completed Office of Professional Responsibility investigations with limited redactions in all cases of:
deaths in CBP custody;
cases reviewed by the agency’s Use of Force Review Boards;
allegations of serious misconduct against Border Patrol officials who serve as any sector’s Chief Patrol Agent, Deputy Chief Patrol Agent, or are members of the senior executive service; and
other matters of high public interest designated by the head of CBP or requested by members of Congress on the committees of jurisdiction.
submit a detailed proposal for a mechanism to ensure that all individuals who complain of violations of their rights by CBP employees
receive official acknowledgment of their complaint, and a point of contact from the investigating agency (or agencies);
are interviewed by investigators (if they consent) in a timely manner. If the complainant or witnesses are in removal proceedings, interviews should occur before they are removed from the country; and
are updated on major steps in the investigation and notified of the final outcome of their complaint.
Annual Report on the Use of Commercial and Government Datasets and Related Surveillance Technologies by the DHS Office of Intelligence and Analysis
Appropriations Committee:Homeland Security Agency: Department of Homeland Security Account: Intelligence and Analysis Type of Request: Report Language
Background
From at least 2017 to the present, DHS’s Office of Intelligence and Analysis (I&A) has struggled with its role as a domestic intelligence agency. Its activities and the secrecy surrounding them raise questions about the sources and reliability of information, safeguards employed in the acquisition of that information, the role of artificial intelligence and checks on that technology, and whether I&A uses face recognition technology or other biometric surveillance technologies to monitor and track Americans.
I&A shares vast amounts of data with DHS components, as well as with state and local law enforcement agencies. An agency of around 700 personnel,12 I&A intelligence officers collect, analyze, and disseminate information derived from data of varying sources, including public social media, law enforcement, other federal, state, and local data, people in detention facilities,13 and possibly commercial data brokers and analytic tools.14
The DHS Office of the General Counsel found that during 2020 racial justice demonstrations, I&A authored dossiers on people cited or arrested during that time.15 In creating the dossiers, the office used commercially procured intelligence tools (such as LexisNexis) and ran the names of protesters who had been arrested “through government travel and immigration systems, commercial data sets, and some systems the government would not publicly reveal.”16 One official stated that this type of practice occurred “thousands” of times before.17 During that period, I&A also collected intelligence on journalists.18
Since then, the agency has targeted political speech of people in the United States by monitoring online “reactions” and “reflections” to the overturning of Roe v. Wade, in addition to targeting environmental and racial justice demonstrators in Atlanta, Georgia.19 The DHS inspector general and intelligence recipients have criticized I&A’s approach to intelligence: “At best, anecdotal evidence” suggests that its information gathering activities are of use to traditional law enforcement, but that its reports “are no longer being utilized in intelligence.”20
I&A relies upon numerous private vendors whose products enable the agency to, among other things, monitor social media, draw connections between users, and assemble profiles as it did in 2020.21 DHS privacy documentation suggests that I&A builds analytic tools potentially powered by artificial intelligence that analyze large datasets for various DHS missions.22 Publicly available documentation is thin on details, fragmented, and difficult to locate — hardly sufficient to allow the public and Congress to understand these systems. Further, I&A may use other public and private sources of information, undisclosed to the public and Congress.23
Proposed Report Language
Not later than 180 days after the enactment of this Act, and annually thereafter, the Office of Intelligence & Analysis (“the Office”) shall submit a report to the Homeland Security and Intelligence committees of the Senate and House of Representatives detailing the Office’s collection and use of intelligence derived from certain data and technologies during any portion of the reporting period. Those data and technologies include: data, including “bulk data,”24 acquired from any federal agency or state, local, tribal, territorial, or foreign government, the private sector, or a nonprofit organization; any dataset to which the Office has access; any analytic tools commercially licensed, acquired from another government agency, or developed by the Office that use artificial intelligence or automation;25 any other commercially licensed analytic tools; facial recognition technology; and other biometric surveillance technology, such as DNA collection and iris scanning.
The report shall detail all of the following:
(1) a plain language description of the purpose and use of the data or tool acquired; (2) the source of the data or tool, including, if applicable, a linkable identification code to the procurement contract on USAspending.gov for the acquired data or tool; (3) the cost, if any; (4) whether the data include or the tool is used to analyze information about U.S. persons; (5) the number of U.S. person entries in the data; (6) any documentation memorializing the terms of use of data or tools; (7) the nature of the data, including whether the data include information relating to location, communications content or metadata, biometrics, web browsing history or internet search history, health, purchase history, or identifiable characteristics of protected classes; (8) a description of how government personnel interact with the tool; (9) a summary of risks that the use of the data or tool poses for civil rights, civil liberties, or privacy and any protections for civil rights, civil liberties, or privacy, including protections put in place to ensure data are not identifiable; (10) policies specifically governing the use of the data and tools, including mechanisms for enforcing compliance with such policies; and (11) whether any intelligence derived from the data or tools has ever been recalled. The report shall include an assessment of the volume (e.g., number of reports) of intelligence derived from such technologies and information regarding contracts with private sector or nonprofit entities that provide access to intelligence derived from facial recognition technology.
The report shall also describe how the Office intends to expand the use of artificial intelligence, automation, or facial recognition technology in its engagement with federal, state, local, tribal, and territorial law enforcement agencies and fusion centers.
The report shall be unclassified and posted to DHS’s public website within 30 days of submission to Congress, except that the report may include a classified annex. Any material submitted in the classified annex shall be summarized in the unclassified report.
Related Content
An Oversight Agenda for Customs and Border Protection: America’s Largest, Least Accountable Law Enforcement Agency
OPR did release a redacted report of its investigation into a September 2021 use of force in Del Rio, Texas, demonstrating that public release of reports is possible. U.S. Customs and Border Protection, Report on Internal Investigations and Employee Accountability, [see note 7].
Government Accountability Office, Homeland Security: Office of Intelligence and Analysis Should Improve Privacy Oversight and Assessment of Its Effectiveness, GAO-23-105475 (August 2023), 11, https://www.gao.gov/assets/d23105475.pdf; Reynolds and Patel, A New Vision for Domestic Intelligence, 5 [see note 12].
Department of Homeland Security Office of Inspector General, The Office of Intelligence and Analysis Needs to Improve Its Open Source Intelligence Reporting, OIG-22-50 (July 6, 2022), 9, https://www.oig.dhs.gov/sites/default/files/assets/2022-07/OIG-22-50-July22.pdf; Department of Homeland Security, Revised Redactions, 24 [see note 15].
21
Department of Homeland Security, Revised Redactions, 55 [see note 15].
This is because I&A possesses broad authority to “access intelligence or information where they have a reasonable belief that viewing the intelligence or information would further one or more of the national or departmental missions” subject to some restrictions on method of collection and whether a U.S. person is the target of the collection. Department of Homeland Security Office of Intelligence and Analysis, Office of Intelligence and Analysis Intelligence Oversight Program and Guidelines, IA-1000 (January 19, 2017), 6, https://www.dhs.gov/sites/default/files/publications/office-of-intelligence-and-analysis-intelligence-oversight-program-and-guidelines.pdf.
24
Department of Homeland Security Office of Intelligence and Analysis, Office of Intelligence and Analysis Intelligence Oversight Program and Guidelines, 17-18 [see note 23].
