When first confronted with evidence that it was collaborating with Mexican law enforcement in a sweeping intelligence-gathering operation targeting journalists, activists and attorneys along the U.S.-Mexico divide, Customs and Border Protection was silent. When still more evidence emerged, in the form of documents leaked by a Department of Homeland Security whistleblower, the agency dismissed the significance of the revelations as routine law enforcement work.
Now, more than four months after the story broke, CBP is owning up to its operations — in a way — and raising new questions about its treatment of the press and immigrant rights advocates on the border.
A summary of CBP’s review of its own operations, detailed in a letter from the head of the Office of Field Operations and obtained by The Intercept, now confirms several components of the motivations behind the controversial border crackdown, including Mexican law enforcement’s suspicion that journalists were facilitating illegal migrant crossings and violence against the authorities; collaboration between the U.S. and Mexico in response to those concerns; and CBP’s targeting of last year’s migrant caravans as a potential hotbed of human smuggling.
“In October of 2018, the threat level of the Central American migrant caravan in Mexico reached higher than normal levels, they demonstrated violent tendencies, and presented transportation, medical, and housing demands to the Government of Mexico,” Randy J. Howe, executive director of OFO, wrote in a letter to Mana Azarmi, an attorney at the Center for Democracy and Technology, last week.
Earlier this month, Azarmi’s organization led a coalition of more than 100 groups seeking answers regarding CBP’s targeting of journalists. “It cannot be a crime to advise asylum-seekers about their rights, or to report the government’s abuse of those rights,” Azarmi told The Intercept. “DHS is criminalizing compassion.”
In his letter, Howe confirmed that “CBP partnered with the Government of Mexico and other law enforcement agencies” to counter the purported threat emanating from the migrant caravans. At the time, in the midst of the 2018 midterm elections, migrant caravans were a rallying cry for President Donald Trump, who described their approach as a “national emergency” and used their advance to launch “Operation Faithful Patriot,” a military maneuver involving the deployment of thousands of troops to the border.
While many on the political left dismissed the president’s actions as a stunt, that was not the case among White House-aligned media outlets. Breitbart News, the sponsor of a Border Patrol union podcast, published multiple stories in October 2018 reporting on violence associated with the caravan. The coming migrants were also a frequent topic of alarm on Fox News, from which the president is known to draw much of his understanding of world events, which later trickles into policy on the ground.
“It cannot be a crime to advise asylum-seekers about their rights, or to report the government’s abuse of those rights. DHS is criminalizing compassion.”
Amid the backdrop of frenzied political agitation surrounding the exodus of thousands of mostly Central American asylum-seekers, CBP began investigating “possible violations” of U.S. Code 1324, an increasingly favored prosecutorial tool of the administration prohibiting a range of activities under the umbrella of human smuggling.
“A number of journalists and photographers were identified by Mexican Federal Police as possibly assisting migrants in crossing the border illegally and/or having some level of participation in the violent incursion events,” Howe wrote. “Imperial Beach Border Patrol Station Agents were attacked multiple times by caravan groups on the border attempting to illegally cross.”
Howe went on to say that “CBP utilized various sources of information in assessing the intentions of the caravan upon their arrival in Tijuana,” and that those “varied sources of information helped identify a number of people involved in assisting migrants cross the border illegally,” as well as witnesses to the “violent actions taken against law enforcement at the border.” In November 2018, a month after Howe said the “threat level” associated with the caravan increased, NBC News reported that DHS was gathering intelligence on the caravan through paid informants and the monitoring of WhatsApp groups.
According to Howe, “CBP followed through with appropriate investigatory queries and compiled caravan information from various sources to determine if subsequent investigation was warranted.” The OFO chief added that CBP’s efforts to gather information were “standard law enforcement practice.” He said that journalists are not targeted for their profession or the stories they pursue, and that his agency has “specific provisions” in place concerning encounters with the press.
“Occasionally,” he acknowledged, “CBP may inconvenience law-abiding persons in our efforts to detect, deter, and mitigate threats to our homeland.”
Azarmi argued that what’s emerged in recent months reflects more than an inconvenience to travel. “Lawyers, activists, and journalists who associate with asylum-seekers have every right to do so,” she said. “Surveilling them and searching their computers and cellphones could chill lawyers from providing necessary legal services and chill journalists who are reporting on the asylum system.”
“For the Americans”
Howe’s letter both confirms prior reporting and enlarges the backstory of how the gaze of the U.S. government’s border security apparatus fell upon journalists and advocates, while at the same time, raising new questions and leaving old ones unanswered.
In February, The Intercept published an investigation in which 19 sources — including journalists, immigration attorneys, and advocates — described a pattern of heightened law enforcement at the San Ysidro port of entry in San Diego beginning at the end of 2018 and continuing through the new year. Sources provided consistent accounts of their interrogations at the port, which included being shown photo lineups of known border activists and being asked to identify who they knew. In a number of cases, the phones or cameras of those being questioned were seized or examined by U.S. authorities.
Multiple migrant rights advocates described prolonged detention at the port. In one case, a U.S. citizen living in Tijuana said he was shackled to a steel bench for more than five hours. In addition to the ramped-up use of so-called secondary screenings, The Intercept investigation detailed the experiences of two award-winning photojournalists and two attorneys at a prominent immigrant rights office who were denied entry into Mexico during the period of heightened border enforcement.
Several photojournalists working near the wall dividing San Diego and Tijuana described U.S. Border Patrol agents filming them as they worked, accusing them of inducing migrants to cross and threatening them with human-smuggling prosecutions; videos provided to The Intercept supported these claims. Several described having their passports photographed by Mexican law enforcement. When asked who they were collecting information for, one of the photographers recalled, a Mexican police officer replied, “For the Americans.”
The Intercept made repeated and detailed requests for comment on the claims over multiple days but did not receive an on-the-record comment from CPB by publication. At the time, Sen. Ron Wyden’s office described the events detailed in the reporting as “extremely disturbing” and confirmed the opening of an investigation into the matter.
The following month, an NBC affiliate in San Diego published leaked documents provided by a DHS whistleblower that confirmed and advanced The Intercept’s reporting. The documents showed that CBP, working alongside Homeland Security Investigations, the powerful investigative wing of Immigration and Customs Enforcement otherwise known as HSI, together with the FBI, compiled a “secret database” of 10 journalists, a U.S. citizen attorney, and 48 other individuals as part of a joint investigation with Mexican authorities. The work was a component of “Operation Secure Line,” the campaign previously known as Faithful Patriot.
This time, CBP offered a general statement to the press, noting that “criminal events, such as the breach of the border wall in San Diego, involving assaults on law enforcement and a risk to public safety, are routinely monitored and investigated by authorities.”
In search of more concrete answers, Wyden, along with Sen. Chuck Grassley called on then-CBP Commissioner Kevin McAleenan to provide an unclassified briefing on his agency’s targeting of journalists and advocates on the border. Members of the House Homeland Security Committee, meanwhile, sent the commissioner a letter seeking documents on his agency’s operations. McAleenan, who is now the acting director of DHS, missed his early March briefing with lawmakers.
The push for transparency escalated further last week, when Sens. Tom Udall, Elizabeth Warren, Kamala Harris, and Richard Blumenthal signed a letter again demanding answers from McAleenan. In addition to the surveillance of journalists and advocates on the border, the senators called on McAleenan to address a report published by The Intercept earlier this month, which revealed that DHS had received and disseminated information harvested by a private intelligence firm on more than 600 protests against the administration’s policy of family separation.
“The details behind CBP’s surveillance programs are shrouded in secrecy, leaving the public and Congress in the dark about the targeting of those working to shed light on immigration policies,” Jesse Franzblau, a senior policy analyst with the National Immigrant Justice Center, told The Intercept. “This follows a troubling overall trend of a lack of transparency and disinformation campaigns waged by the White House as DHS asks for more funding for hateful border enforcement programs.”
In his letter, Howe wrote of multiple attacks on Border Patrol agents stemming from last year’s caravan. While the OFO chief did not offer details or specifics, it’s likely that he had the events of November 25 and the early morning hours of New Year’s Day in mind — two moments when U.S. authorities launched tear gas at migrants, including women and children, on the San Diego-Tijuana border, and accusations swirled that radical American activists played a role in escalating tensions.
While it’s possible, if not likely, that these allegations piqued the interest of U.S. law enforcement agencies, Howe’s letter does nothing to explain why Nora Phillips and Erika Pinheiro, senior litigators with the Los Angeles- and Tijuana-based organization Al Otro Lado, were later barred from entering Mexico. Nor why award-winning freelance photojournalists Daniel Ochoa de Olza and Kitra Cahana were subjected to the same.
“CBP confirmed in writing that it targeted journalists for questioning because, CBP says, Mexican Federal Police identified them as ‘possibly assisting migrants in crossing the border illegally and/or having some level of participation in the violent incursion events,’” Linda Moon, a Stanton Foundation national security fellow with the Reporters Committee for Freedom of the Press, told The Intercept. “If the Department of Justice received a similar tip, it would have to get the attorney general’s approval before questioning any of the journalists under longstanding internal policies that exist to protect news-gathering activities from undue law enforcement scrutiny.”
Moon, who is working on litigation with NBC San Diego to secure the release of documents related to CBP’s operations, said, “It’s high time for a set of meaningful, Justice Department-style news media guidelines for CBP and its sister agency ICE.”
The expansive view of what counts as harboring or smuggling has included the arrest of Teresa L. Todd, who was detained by the Border Patrol after pulling over to help three young migrants she encountered on the side of the road.
Howe’s letter provides the latest evidence that federal law enforcement is keenly interested in bringing criminal charges against opponents of the president’s immigration policies, on the grounds that those opponents’ activities have crossed a legal line. At the center of that effort is a statute known as 1324.
In April 2017, then-Attorney General Jeff Sessions issued an order to federal prosecutors — still in effect — to ramp up the previously rare harboring and smuggling charges contained under 1324. The most dramatic example to date of prosecutors following through on Sessions’s order is the case of Scott Warren, a humanitarian aid volunteer in Arizona, currently facing 20 years in prison under 1324 harboring and conspiracy charges for allegedly allowing two undocumented men in a remote stretch of the Sonoran Desert access to food, water, and a place to sleep over two nights in 2018.
Over the past two years, there have been a number of signs that Trump administration officials were eager to bring 1324-based charges against other individuals and organizations affiliated with asylum-seekers and the caravans the president has railed against. As veteran border reporter Debbie Nathan noted last month, the number of people hit with smuggling and harboring charges jumped by nearly a third from fiscal year 2015 to 2018, with the bulk of the increase occurring after Sessions’s 2017 order went into effect. The expansive view of what counts as harboring or smuggling has included the arrest of Teresa L. Todd, a government attorney in West Texas, who was detained by the Border Patrol after pulling over to help three young migrants she encountered on the side of the road.
As recently as this month, a migrant rights advocate in Arizona was arrested while accompanying an asylum-seeker to the Lukeville port of entry. The volunteer, Ana Adlerstein, told The Intercept that CBP officers accused her of human smuggling while in detention, referencing the 1324 statute specifically.
DHS has appeared particularly interested in the group Pueblo Sin Fronteras, the U.S.-based organization most prominently affiliated with the recent migrant caravans, and its leader Irineo Mujica (government attorneys prosecuting Warren’s case in Arizona have described him as an unindicted co-conspirator, though little evidence has emerged to support their reasoning).
“If anybody’s encouraging or inducing aliens to enter the United States illegally, it’s the U.S. government.”
In interviews with The Intercept in February, multiple individuals who were pulled into secondary screening in San Diego said Mujica and Pueblo Sin Fronteras came up during their questionings. Members of the organization, meanwhile, described being questioned about the asylum and know-your-rights trainings they provide to migrants south of the border. This line of interrogation suggested that some elements of law enforcement believe that organizations such as Pueblo Sin Fronteras and its volunteers have entered into prosecutable territory. Brandon Judd, head of the Border Patrol’s union and ally of influential White House adviser Stephen Miller, reinforced that view when discussing the issue of migrant caravans and the groups that support them in a radio interview last spring.
“They’re coaching them. They’re teaching them what they need to say when they cross the border illegally, and frankly, if any one of these individuals crosses the border illegally, those people that helped facilitate them to cross the border illegally need to be prosecuted,” Judd said at the time. “That’s smuggling. That’s furthering the entry of individuals.”
Alex Mensing, a Pueblo Sin Fronteras volunteer who was included in CBP’s photo lineup, told The Intercept that Judd’s accusation has been hovering around his organization for more than a year and that it’s false. “The simple answer is that that’s not true, and the less simple answer is that we encourage people to exercise their rights, and there’s a lot of ways in thinking about rights,” he said. The legal ground has shifted considerably under the current administration, Mensing noted, with critical restraints imposed on bond hearings once given to asylum-seekers. At the same time, CBP has used practices such as “metering” at ports of entry widely under the current administration, limiting the number of people permitted to apply for asylum each day. As the Associated Press reported recently, as many 13,000 asylum-seekers are currently waiting in Mexico for an opportunity to make their case in the U.S.
“If anybody’s encouraging or inducing aliens to enter the United States illegally, it’s the U.S. government,” Mensing said.
Brian Griffey, a researcher at Amnesty International, echoed that view. “We know those Trump policies are pushing asylum seekers to cross irregularly.”
For months, Griffey has investigated the crackdown on immigrant rights advocates and humanitarian aid providers along the border for a forthcoming report. In the course of that work, he said, “CBP has presented zero facts suggesting any human rights defenders supporting asylum-seekers in Mexico have committed any crimes,” adding that the agency was “grabbing at straws to find indicting information about anyone who’s been supporting asylum-seekers in Mexico.” The Amnesty researcher said that “the vagueness of the crimes of ‘encouraging’ or ‘inducing’ migrants and asylum-seekers to cross irregularly has clearly offered CBP a gaping loophole to intimidate, threaten, and harass anyone who explains to refugees their right to seek asylum in the USA — even if they cross irregularly.”
“Those crimes could equally be applied to the Trump administration’s architects of its illegal asylum and border policies,” Griffey went on to say. “CBP has not opened an investigation yet into Stephen Miller for aiding and abetting,” he said — but under the logic applied advocates and humanitarian aid providers, it could. “He is more responsible than anyone for the driving of thousands of asylum-seekers into the hands of smugglers in order to cross irregularly into the U.S.”