Border agency blocks release of independent report on use of force

A man walks along the border fence in Tijuana, Mexico, near where a U.S. Border Patrol agent shot Mexican citizen Edgar Ortega in 2008. Authorities said Ortega was throwing rocks at agents.

Credit: Guillermo Arias/Associated Press

Despite pledges from the Obama administration for greater transparency, U.S. Customs and Border Protection has kept secret a potentially embarrassing independent report on how the agency deals with shootings and other violent incidents.

Members of Congress, immigrant groups and civil rights advocates have pushed for the agency to be more transparent and accountable on shootings and other uses of force against migrants and others. But the agency has repeatedly turned back calls to make the report public, including a recent request by The Center for Investigative Reporting under federal open records laws.

The Police Executive Research Forum, a Washington-based think tank and consultant, prepared the report last year following a spate of deadly shootings by Customs and Border Protection agents and officers. In the report, the consultants examined use-of-force policies and 67 specific shooting incidents.

Overall, Customs and Border Protection agents and officers have killed nearly 30 people since 2010.

Critics of the administration say the decision to block the release of the report – described as scathing by those who have seen it – is part of a pattern within the Obama administration to obscure how Customs and Border Protection and the U.S. Border Patrol use deadly force.

On Thursday, the American Civil Liberties Union of San Diego and Imperial Counties filed a lawsuit to force the report’s release. Mitra Ebadolahi, the lawsuit’s lead attorney, said the agency’s failure to respond to an earlier Freedom of Information Act request underscores its resistance to transparency and accountability.

“This is an enormous agency with tons of personnel that comes into contact with thousands of Americans every day, and it’s important for us to know when, how and why they decide to use force,” she said. “Not only because it’s the democratic thing to do, but especially because people are dying after encounters with the agency.”

CIR filed its own FOIA request for the consultant’s report in September. Customs and Border Protection this month notified CIR that the agency denied the request. The letter cited the deliberative process privilege exemption to the law, which allows the federal government to withhold documents so as not to “inhibit the free and frank exchange of information among agency personnel” who are debating policy.

The border agency has a track record of furtiveness. The journalism organization Investigative Reporters and Editors last year bestowed its inaugural Golden Padlock Award for the most secretive government agency to the U.S. Border Patrol. Customs and Border Protection is the Border Patrol’s parent agency.

Yet Customs and Border Protection has released similar documents under the Freedom of Information Act, including a 2011 report called the Workforce Integrity Study. That report, obtained by CIR, focused on corruption within the agency’s ranks. Like the use-of-force report, this study also reviewed agency policy and made recommendations.

Ebadolahi said she was not surprised by the agency’s decision to deny CIR’s request, but she didn’t think it was correct. She said agency officials failed to explain why they think the deliberative process privilege should be invoked. Even if the exemption applies, the agency can’t withhold the entire report under the statute, she said.

Customs and Border Protection spokesman Christopher O’Neil said that because of agency policy, he could not comment on the pending lawsuit. He did not respond to questions about the denial of CIR’s information request or whether the agency has plans to release the Police Executive Research Forum report. CIR has appealed the denial.

During a January Senate Finance Committee hearing on R. Gil Kerlikowske’s nomination to be the agency’s commissioner, Sen. Robert Menendez, D-N.J., asked whether the nominee would plan to release the report as well as implement its recommendations. Kerlikowske, who is also a former president of the law enforcement consultancy that wrote the report, said he would push to be more transparent on this subject.

“Transparency in the use of force, in any law enforcement agency, is critical,” Kerlikowske said. “I have not been in a law enforcement agency in which the specifics of the use of force were not made available to the general public, and I would work very hard to see that that is done within CBP.”

A Department of Homeland Security inspector general’s report issued in September referenced the consultant’s report but heavily censored the recommendations. A CIR story published in January with The Washington Post described the unredacted version of the inspector general’s report.

The Police Executive Research Forum was asked in late 2012 to examine use of force. In the meantime, the long-standing controversy over the Border Patrol's use-of-force policies has garnered mounting attention from the media, including stories from The Arizona Republic, Texas Monthly and the Los Angeles Times.

House and Senate oversight committees requested copies of the Police Executive Research Forum report last fall but received only summaries. The L.A. Times, which obtained a leaked copy of the full report, wrote in February that those summaries left out the most controversial findings: that Border Patrol agents stepped in front of moving cars to justify firing their weapons and that agents fired at people throwing rocks when they could have simply backed away.

The Times, which characterized the report as scathing, published only select quotes. Chuck Wexler, executive director of the Police Executive Research Forum, declined to comment on the report.

This story was edited by Robert Salladay and copy edited by Nikki Frick and Christine Lee.

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