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Whistleblower Says CBP Has Culture of Impunity and Violence

Chris Rickerd,
Senior Policy Counsel,
ACLU National Political Advocacy Department
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August 15, 2014

Yesterday the Center for Investigative Reporting (CIR) published what it described as “the most scathing public criticism ever lodged against Customs and Border Protection from a high-ranking official at the nation’s largest law enforcement agency.”

James F. Tomsheck, who in June was reassigned to a senior Border Patrol post after eight years heading CBP internal affairs, delivered a devastating indictment of CBP’s integrity. Tomsheck, CIR reported, says:

  • CBP has a culture of impunity, seeing itself as above reproach and “constitutional constraints,” and aims to shield agents’ misconduct and a massive corruption problem from outside scrutiny.
  • Border Patrol officials have consistently tried to change or distort facts to make fatal shootings by agents appear to be “a good shoot” and cover up any wrongdoing.
  • Tomsheck said he believes that thousands of employees hired during an unprecedented expansion of the agency in the post-9/11 era are potentially unfit to carry a badge and gun.

CIR’s remarkable story confirms other media reports of a pervasive lack of integrity within CBP and validates longstanding advocacy by border communities, including litigation and public education by the ACLU. The overwhelming evidence compels an inescapable conclusion: CBP is a dangerously out-of-control agency in deep crisis.

After six years in office, the Obama administration must take urgent action and show that it’s finally serious about reforming CBP. Here are four vital steps:

  1. The Department of Justice should conduct an external review of CBP’s internal-affairs failings, especially all uses of deadly force since 2005. Until CBP builds proper internal-affairs capacity, DOJ should detail personnel to assume those functions. All current and former CBP employees complicit in fostering the culture of impunity deplored by Mr. Tomsheck must be held accountable, all the way up the chain of command.
  2. CBP’s new leadership – including Commissioner Gil Kerlikowske and FBI veteran Mark Morgan, Tomsheck’s replacement at internal affairs – must acknowledge the integrity crisis at CBP by committing publicly and forcefully to changing CBP’s culture. There must be wholesale reform of CBP’s broken complaint system, including a clear statement by leadership that public complaints will be investigated without retaliation. The ACLU and allies have made detailed recommendations to CBP on its complaint processing.
  3. CBP should immediately deploy dashboard and body-worn cameras to record all interactions with the public within appropriate privacy and data-retention guidelines. In September 2013, CBP promised to pilot dashboard and body-worn cameras. Nearly one year later, the public deserves to know why this promise is unfulfilled.
  4. Secretary Johnson must reduce CBP’s 100-mile zone of operations, including the 25-mile zone to enter private property without a warrant. Contrary to the law’s requirement that CBP operate only within a “reasonable distance” of external borders, CBP makes vast claims to intrusive and abusive power at ports-of-entry, checkpoints, and on roving patrols. Hundreds of millions of Americans have their rights diminished by CBP’s excessive zone of operations and flouting of constitutional protections.

Tomsheck’s remarks underscore the dire need for systemic cultural change at CBP. Without oversight and accountability, CBP abuses have destroyed families; humiliated Americans, travelers, and migrants; and disgraced federal law enforcement.

That needs to end.

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