Years of litigation over a Freedom of Information Act request by the ACLU has finally resulted in the release of a trove of Border Patrol documents, The Intercept reports. The documents pertain to training Border Patrol officers in who they have the right to pull over and search on suspicion of entering the country illegally.
The ACLU first filed a FOIA to access these documents in 2014, and subsequently spent four years in litigation with Customs and Border Protection over their release. CBP argued that releasing the documents would violate attorney-client privilege between the agency’s legal team and Border Patrol officers. Last year, a federal judge ruled that the documents didn’t include confidential information covered by that protection. Some of the newly released documents are redacted anyway—for example, an entire section on surveillance was removed.
But the documents still shine light on CBP’s practices, including those of its “roving patrol” officers who operate as far as 100 miles from the border. The documents include a copy of a 2012 training document called Enforcement Law Course, which CBP describes as advice “on the legal authority of CBP’s law enforcement personnel and issues they would confront in investigations and prosecutions.”
“One thing the documents that we obtained do a good job of highlighting is how arbitrary and often nonsensical the agency’s decision about whether something rises to reasonable suspicion to justify a stop is,” Mitra Ebadolahi, a lawyer with the Border Litigation Project who helped litigate the case, told The Intercept.
Included in the documents is a wide-ranging list of 21 reasons that CBP officers can pull over a car:
(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.
Many of these points expound on court cases that ruled on Border Patrol powers.
The documents argue that because of a 1953 Justice Department regulation, CBP officers can patrol areas as far as 100 miles from the border. But within 25 miles of the border, officers have even more power: in those zones, Border Patrol can question anyone and even go onto private land. Because of their locations, this means these powers apply to cities like New York, Miami, and San Diego. But the documents also state that any city with an international airport could count as part of the border zone. Even more disturbingly, CBP also believes it has the right to search buses and trains that depart from these locations.
“This is a form the surveillance state takes in the United States,” Sarah St.Vincent, a Human Rights Watch surveillance researcher, told The Intercept. “It takes place under this veneer of law, such that it looks legitimate and reasoned, but actually there are serious questions to be asked, both about practices and whether the case law or the laws the government is citing in support of what it wants to do reflects what Congress or the courts actually said.”
“The judiciary has to be a line of defense for the Constitution and really make the Fourth Amendment protections meaningful by interpreting them in a way that doesn’t permit an agency such as Border Patrol to basically make up whatever it wants and have that satisfy the standard,” Ebadolahi told The Intercept. “That’s one of the things that these documents really throw into relief. It’s really disturbing.”
This is far from all of the concerning material in the 1,000 pages of released documents. One slide recommends border agents don’t use “slang” including the derogatory slur “wetbacks.” Another suggests that civilians who refuse to assist them can be charged a $1,000 fine or given a misdemeanor.
Right now, Border Patrol officers do not have to document their searches, only their arrests. A bill introduced in Congress last year by Sen. Kirsten Gillibrand would change that, requiring CBP agents to report every stop and search.
Ebadolahi says that despite these releases, CBP’s policies are still largely shrouded in mystery.
“How are they allocating the resources they have?” Ebadolahi told The Intercept. “Our taxpayers are funding this, and it’s not actually increasing anyone’s security. It’s actually a huge risk to living in a free society.”