Removal of border agency’s internal affairs chief raises alarms

James F. Tomsheck led U.S. Customs and Border Protection's internal affairs office for eight years. He was removed from his post this week.

Credit: U.S. Customs and Border Protection

The removal of a high-ranking U.S. Customs and Border Protection official this week was designed to soothe critics who say the agency has been too soft on Border Patrol agents and other employees accused of misconduct, abuse and corruption.

But James F. Tomsheck’s removal as chief of internal affairs has raised more alarms about the agency, which has witnessed a dramatic spike in shootings and violence in recent years. Customs and Border Protection agents have killed 28 people since 2010.

Tomsheck’s supporters said he is a scapegoat for a broken and byzantine hierarchy that was created after 9/11. For years, Tomsheck wrestled with larger, more established watchdog agencies at the Department of Homeland Security and U.S. Immigration and Customs Enforcement – all with jurisdiction over Border Patrol misconduct.

As a result, Tomsheck’s hands often were tied because of interference from these other agencies and even senior Customs and Border Protection officials, especially when it came to disciplinary action, said James Wong, who retired as Tomsheck’s deputy in late 2011.

“With very serious misconduct – borderline criminal activity – senior management often gave Border Patrol agents a slap on the wrist or did nothing at all,” Wong said. “Senior managers thwarted our ability to conduct complete investigations.”

Tomsheck was removed as the assistant commissioner of internal affairs Monday, a post he had held for eight years, as part of what the agency called a reorganization and review of the office. Tomsheck, who has been with the federal government for roughly 30 years, was previously a U.S. Secret Service agent.

In some cases, Tomsheck’s office was kept in the dark about investigations or shielded from information. Wong said the office often was told that the FBI and homeland security inspector general were handling investigations and had minimal access to those cases. It would be months or years before internal affairs could conduct its own reviews of alleged misconduct or shootings to learn whether agents had followed policy.

In particular, Wong pointed to the June 2010 shooting death of Sergio Hernandez Guereca, a 15-year-old Mexican citizen who was gunned down near El Paso, Texas. The inspector general, senior Customs and Border Protection officials and others blocked the internal affairs office from significant information about the shooting, Wong said.

The Justice Department eventually declined to prosecute the agent involved.

“Internal affairs had minimal access to many investigations,” Wong said. “We were consistently shielded from conducting our own reviews” both by outside agencies and top Customs and Border Protection managers.

Tomsheck, who referred a request for comment to his lawyer, was moved to another position within the agency. Tomsheck’s attorney, Barry Coburn, said they were considering next steps.

W. Ralph Basham, a former director of the U.S. Secret Service who hired Tomsheck to lead the internal affairs office in June 2006, soon after he became Customs and Border Protection’s commissioner, said he was shocked by the claim in news reports that his former employee was not aggressive in going after allegations and complaints of civil rights violations and abuse.

In fact, he said the opposite was true – Tomsheck had been accused of being too aggressive in going after misconduct.

“I quite frankly believe his hands were tied when he tried to go after some of these abuses,” said Basham, who retired from the agency in 2009. “Others in the organization did not want the internal affairs division to do their job. I believe they hindered them in many ways by a lack of cooperation.”

Ronald T. Hosko, who recently retired as the head of the FBI’s criminal investigative division, agreed that Tomsheck’s office was undermined by turf battles, and he never knew Tomsheck to back away from an investigation. The FBI, he said, also had long-running disputes with the homeland security inspector general for failing to share information in Customs and Border Protection corruption and misconduct cases.

Hosko said members of drug cartels and gangs have been applying for jobs in the U.S. government “for the purpose of corrupting the system by passing along intelligence, sharing intelligence gaps, showing vulnerabilities.”

Not sharing information “goes against everything we learned post-9/11,” he said.

Wong said Tomsheck aggressively pursued prosecutions of agents. He cited the case of Jesus Diaz Jr., a Border Patrol agent who was convicted in 2011 of excessive use of force and false statements.

Internal affairs agents investigated an October 2008 incident in which Diaz, who was assigned to a Border Patrol station in Eagle Pass, Texas, was accused of violently pulling on the handcuffs that restrained a Mexican juvenile suspected of smuggling drugs while he pressed his knee into the victim’s back, dropping him face first, kicking him and later lying about it.

Other watchdog agencies – namely the homeland security inspector general and Immigration and Customs Enforcement’s Office of Professional Responsibility –already had conducted cursory investigations and found no wrongdoing.

“They didn’t do anything” to interview the victim and fully investigate, Wong said.

A Border Patrol agent books a woman into a short-term detention center in Nogales, Ariz.

Credit: Peter O’Dowd/Fronteras

Internal affairs agents picked up the case, found the abuse victim in Mexico and interviewed him, and presented their investigation – corroborated by agents who witnessed the incident – that concluded that Diaz had committed a crime and lied about it. After an initial mistrial, a federal jury in Del Rio, Texas, convicted Diaz in February 2011.

Basham questioned why other watchdogs, among them the FBI and the homeland security inspector general, weren’t being scrutinized and held accountable for not investigating such allegations – as they are the lead agencies to investigate civil rights violations, misconduct and corruption.

But the problems involving accountability and transparency don’t lie only with internal affairs or other watchdog agencies, Basham said.

“The Border Patrol is the elephant in the middle of the room that did not want any outside investigation of their agency,” he said. “They had for many years dealt with these things internally. And that obviously caused some issues.”

Officials with the Department of Homeland Security and Customs and Border Protection declined to comment on Tomsheck’s removal.

The decision to remove Tomsheck from his internal affairs position follows the release late last month of an independent review of the agency’s use-of-force policies and actions, which concluded that investigations into shootings and other violent acts lacked rigor, among other findings.

Facing public pressure from immigration advocates, civil rights groups and critics in Congress, Customs and Border Protection Commissioner R. Gil Kerlikowske ordered the release of the long-awaited report, which was blocked from the public for more than a year after its February 2013 completion.

Agency spokesman Chris O’Neil did not address Basham’s statements in a written response but thanked Tomsheck “for his service and his efforts to build the (Customs and Border Protection) Office of Internal Affairs.”

“As he has said repeatedly, Commissioner Kerlikowske is committed to integrity and transparency, and improving the use of the force review process,” O’Neil wrote.

Tomsheck expanded the office from about five investigators when he took over to roughly 200 today stationed in 20 national field offices to weed out corruption and misconduct, on top of several hundred other analysts, polygraphers and other employees.

He was also the agency’s chief security officer, approved security clearances and oversaw background investigations of prospective employees and five-year reinvestigations of current employees and other personnel matters. 

Some saw Tomsheck as a polarizing figure who aggressively instituted a polygraph program, among other initiatives, to address corruption and integrity issues. He clashed with his counterparts at the inspector general’s office, who had waged a turf war with the FBI over corruption investigations, according to current and former homeland security officials.

The agency’s internal affairs agents, many of whom come from other investigative agencies, are not designated as criminal investigators. They mostly conduct reviews of administrative violations and misconduct. Many are assigned to FBI Border Corruption Task Forces around the country.

Customs and Border Protection has named Mark Morgan, the FBI’s deputy assistant director for inspections, to lead the office on an interim basis, help strengthen the agency’s internal reviews and foster cooperation with other watchdogs starting later this month, a decision that Basham found curious. 

“What is the FBI going to be able to do under the same constraints that James Tomsheck and his shop were not able to overcome?” he said. “That’s a question that needs to be answered.”

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

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