The Government Has Been Using the Border as a Dragnet to Pressure People Into Becoming Informants

Recently leaked documents published by The Intercept show that the FBI and Customs and Border Protection have been using CBP’s authority to search travelers at the border — along with the troves of information collected as a result — to troll for potential sources and pressure people into becoming informants. We’ve gone through the documents, and they heighten our concerns that these agencies are exceeding their authority, targeting minority communities and vulnerable people, and trying to evade accountability for doing so.

These documents also highlight a broader problem with the government’s official guidance on the use of race by federal law enforcement agencies. That guidance purports to ban racial profiling, but it includes exemptions for border screening and national security — exemptions that the leaked documents demonstrate are dangerous and unwise.

The secret documents provide a detailed description of the arrangement between the FBI and CBP. The FBI briefs CBP on intelligence priorities, including countries of interest, and CBP provides the FBI with lists of passengers departing to or arriving from those countries 72 hours beforehand. The agencies then use those passenger lists and FBI databases to “target” or “spot” potential informants among the passengers. When those individuals arrive at the airport, CBP redirects them for secondary inspection — which can mean hours of intrusive questioning and searches — during which CBP officers assess them as possible informants and provide those assessments to the FBI. The FBI then uses the airport search as a “pretext” for a follow-up visit to people at their homes or workplaces, during which agents pressure them to become informants.

Most of the documents date from 2012, and while they don’t include independent confirmation that this program is ongoing, they are consistent with what we hear routinely from members of American Muslim, Arab, and South Asian communities about their treatment by the FBI and CBP.

The documents raise several serious concerns.

An End-Run Around the Fourth Amendment

First, this kind of collusion between the FBI and CBP stretches each agency’s authority to the breaking point. The FBI can’t stop and search or question people without any suspicion of wrongdoing in order to assess whether they can be pressured into serving as informants; doing so would violate the Fourth Amendment. By engineering those stops, searches, and questioning by CBP at the border, the FBI is attempting to circumvent the Constitution.

CBP, for its part, has the authority to stop and search travelers at the border and ports of entry, but only for the purpose of locating contraband or identifying individuals who are inadmissible or engaged in criminal activity — a mandate that CBP recognizes is limited. Instead, CBP is using the border as a dragnet for intelligence gathering on innocent people — or, in the FBI’s words, “[l]ooking for ‘good guys’ not ‘bad guys.’” That appears to be outside CBP’s authority.

The result is that CBP’s searches under the informant-recruitment program are much more intrusive than they would be if they stayed within CBP’s mandate. For instance, the questions CBP asks in trolling for informants are designed, according to the documents, to assess people’s “motivators, personality traits, vices, interests, hobbies, etc.” That’s unduly invasive, and it’s consistent with what we’ve long documented about border questioning of Muslims regarding their religious beliefs and practices — questioning that can infringe on rights guaranteed by the Constitution and federal law.

Racial and Religious Profiling

Second, the documents again show that both the FBI and CBP unfairly and discriminatorily target American Muslim communities for scrutiny and surveillance. One blatant example of that kind of biased targeting is a presentation describing the FBI’s efforts to recruit informants within Yemeni-American communities in Buffalo and Rochester, New York. In singling out those entire communities for “source targeting,” the FBI is treating them as inherently suspicious — a practice that parallels its offensive and discriminatory “racial mapping” program.

Other parts of the documents underscore that the agencies are engaging in what amounts to racial and religious profiling. In describing the program, the first bullet in a CBP presentation states that the agencies are “[n]ot profiling, targeting,” but the very next bullet states that they “can target on a number of factors, including . . . name origin.” That’s essentially a proxy for ethnicity, and in many cases, religion. Another document directs CBP officers to assess travelers’ potential value as informants by asking them about their “tribal/clan affiliation,” again suggesting that CBP and the FBI are targeting those travelers for additional questioning and scrutiny based on their race or ethnicity.

Taking Advantage of Innocent People

Finally, the documents offer a disturbing window on how the FBI and CBP prey on people in vulnerable positions while concealing the true nature of the informant-recruitment program. The border can be an inherently coercive environment, and people transiting the border — including U.S. citizens — may feel compelled to answer whatever questions CBP officers ask them, even if they are deeply personal or irrelevant to CBP’s border-security mandate (more on your rights at airports and ports of entry here). The FBI and CBP are leveraging that dynamic in order to single out, search, and question people who, again, the agencies acknowledge have done nothing wrong.

Immigrants are particularly vulnerable to this kind of coercion, which the agencies purposely exploit. The documents instruct officers to use an “immigration relief dangle” — i.e., an offer to assist in securing immigration relief if the individual serves as an informant. That raises serious legal and constitutional concerns, and it is of a piece with a secret program through which the government denies or delays citizenship or lawful permanent residence to thousands of law-abiding people without adequate due process. The FBI and CBP ratchet up the deception by using that “dangle” with people “who will ultimately receive their benefit anyhow,” meaning the offer is an empty promise.

CBP says that its “inspection procedures are designed to facilitate the entry of U.S. citizens and aliens who can readily establish their admissibility.” These documents belie that claim. They also serve as a stark indication of how the FBI and CBP are treating the border as a dragnet to pressure vulnerable people to spy on their neighbors and communities.

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Anonymous

Even in domestic cases it appears that the FBI, using guilt by association, will intentionally destroy innocent native born U.S. citizens in order to investigate other suspects close to them. Their prime suspects may be innocent as well.

In other words the FBI will destroy good guys (in a premeditated manner) - not based on evidence, but based on a guess. They appear to violate the Bill of Rights and their own oath of office to illegally intrude into certain groups to subvert the Fourth Amendment. The biggest villains are the judges not providing judicial review over the executive branch agencies.

It's important to remember that the Framers of the Constitution created our Bill of Rights primarily to "restrain" the authority of the federal government. It was part of the deal that the Anti-Federalist states agreed to with the Federalist states. Those states were worried that an unchecked federal government would resemble an 18th Century British monarchy's "General Warrants" - performing fishing expeditions ransacking citizens' personal effects.

Laura Stone

One big problem with so many of these systems intended to further security aims is that someone has sold a program (once again) that promises a cookie cutter approach to a complex issue, which of course results in gross misjudgments and jeopardizes both freedoms and security.

Simira Pandoran

It still can vary of how you think about the security and where it comes in action.

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Joe

It's worth pointing out that the 4th amendment doesn't say, "...except when crossing into the United States from abroad.". The government has promised it will take no authority to search you, even when crossing borders.

Ah, but no republic, in history, has ever followed its constitution. What do you expect when it decides what is constitutional or not? It's also worth pointing out that none of us signed the Constitution anyway, so there is no evidence that any of us agreed to it. All it is is the articles of organization for a criminal organization, that will take your money and tell you what to do, at gunpoint.

Anonymous

actually you are not "in" the US until they clear you in. Up to that point you are 'at the border' but not over it. Therefore they have taken to themselves full unconstitutional powers over us.

Anonymous

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Anonymous

Ridiculous reasoning. Where was the ACLU on 9/11/2001, why weren't you trying to protect the rights of potential "terrorists" then, its because the US was under siege, you were sitting in your offices looking at thousands of US citizens being decimated, probably feeling powerless because the public sentiment was all enforcement, catch those bastards by any means possible. It is so easy to criticize the gladiator in the coliseum, the cop on the street, and the federal agent trying to be proactive preventing such a horrific event from occurring again. Why hasn't the ACLU stood up for the rights of every citizen who is mandated to pay exorbitant prices for healthcare which was unfairly pushed upon the public as a tax not a healthcare policy. Millions of people can't afford this and would rather pay the penalty and out of pocket, what a travesty. Why isn't the ACLU supporting the rights of the police officer unfairly assaulted by the media who protects your neighborhood so you can sleep at night. Why doesn't the ACLU support the troops fighting abroad to uphold the very freedoms your organization is exercising, instead of the flag burners and war protesters in the US? Why does the ACLU not promote nationalism and Christian beliefs, the glue that started this country instead support goes to stopping the pledge of allegiance in schools and removal of the ten commandments from public view? I guess it's no surprise when the founding tenet of the ACLU is based on anarchist/social/political radical Roger Baldwin's ideology:
"I am for socialism, disarmament, and, ultimately, for abolishing the state itself... I seek the social ownership of property, the abolition of the propertied class, and the sole control of those who produce wealth. Communism is the goal." It's clear the total annihilation of the United States and it is amazing that President Carter gave him the Presidential Medal of Freedom, unreal.

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