The following article was originally published on Southern Border Communities Coalition page.
BORDER COMMUNITIES CALL FOR ELIMINATION OF ALL INCARNATIONS OF COVER-UP TEAMS
Southern Border — Yesterday the U.S. Government Accountability Office (GAO) issued a report on Border Patrol Critical Incident Teams (CITs) that was prompted by a 2021 lettersent to Congress by the Southern Border Communities Coalition (SBCC). The GAO report validates community concerns that Border Patrol has used CITs to engage in criminal investigations of border agents for use of force without any congressional authority and with the contrary purpose of managing “civil liability”. The report points to widespread and ongoing abuse of power at the nation’s largest law enforcement agency. In light of this, SBCC calls for an end to all current and future incarnations of CITs to ensure the integrity and independence of criminal investigations.
According to the GAO report, Border Patrol has operated local “homegrown” teams in the southern border sectors to respond to critical incidents that involved border agents’ use of force and resulted in serious injury or death to manage liability for the agency and agents. Border Patrol officials told the GAO that “headquarters did not participate in the creation of the teams or oversee their operations.” They said that beginning in the late 1980s, Border Patrol sector chiefs began directing locally created CITs to respond to critical incidents and “secure the scene, collect evidence, investigate the incident on behalf of Border Patrol, and coordinate with or support other agencies.”
When asked about their authority to do all this, the Border Patrol’s Office of Chief Counsel told the GAO that it came from their general “housekeeping” authority under 5 USC 301, which is about the preservation of records, not about investigative activity. “That is a stunning abuse of power,” said Lilian Serrano, Director of the Southern Border Communities Coalition. “As the GAO report states, the only federal agencies with statutory authority to investigate criminal use of force incidents involving Border Patrol are the Federal Bureau of Investigation (FBI), the Department of Homeland Security Office of Inspector General (OIG), and the Customs and Border Protection Office of Professional Responsibility (OPR).”
“Border Patrol never had the authority to investigate and yet it appears to have inserted itself in every criminal investigation between 2010 and 2022, the period of CIT activity that the GAO reviewed,” said Andrea Guerrero, Executive Director of Alliance San Diego, a member organization of SBCC. “The GAO estimates that since 2010, CITs have responded to nearly 900 critical incidents involving border agents, including 149 fatal encounters, potentially interfering with investigations and engaging in obstruction of justice as they did in the 2010 death of Anastasio Hernandez Rojas in California, where agents dispersed witnesses, erased and mishandled evidence, misused subpoena powers, altered government forms, manufactured lies, and withheld information from police investigators.” The Inter-American Commission on Human Rights is pending a decision on whether the United States violated international law in operating CITs that obstructed justice in the case of Anastasio and other cases.
Although CITs were disbanded in 2022, the GAO report confirms that Border Patrol continues to operate management-driven teams that are responding to critical incidents. These were concerns raised by SBCC in a follow-up letter to Congress in 2022, after a border agent shot and killed Carmelo Cruz Marcos in Arizona and a Border Patrol team acted to undermine the investigation, controlling the scene, collecting evidence, questioning witnesses, and participating in the autopsy. SBCC reiterated its concerns in a letter in 2023, following revelations about the reliance of Customs and Border Protection (CBP) on these teams. The GAO report now confirms that former CIT members have been assigned to Evidence Collection Teams and Management Inquiry Teams that are directed by sector chiefs in the same way that the CITs were, compromising criminal investigations. As of fiscal year 2023, all sectors had these teams. All of them.
Moreover, the GAO report states that the only department within CBP that is authorized to conduct investigations, OPR, may be compromised because its new hires are drawn largely from Border Patrol. Additionally, OPR is not fully independent of CBP management, which simultaneously oversees Border Patrol and has relied on CITs for decades in full knowledge of how they might compromise investigations.
“The ongoing existence of Border Patrol management-driven teams that are engaging in investigations of use of force, including vehicle pursuits, heightens the risk that the country’s largest law enforcement agency is operating without accountability, undermining public trust and putting everyone in danger,” Serrano said.
“This month, Border Patrol turns 100 years old and at no time has an on-duty agent been convicted for killing a community member,” Guerrero said. “The GAO report confirms that this is not by accident, it is by design. It’s now time to turn the page and end all incarnations of CITs once and for all. Teams that are concerned with civil liability have no place in reviewing use of force incidents. They undermine the integrity and independence of a criminal investigation and are an egregious abuse of power.”
The Southern Border Communities Coalition (SBCC) brings together organizations from San Diego, California to Brownsville, Texas, to ensure that border enforcement policies and practices are accountable and fair, respect human dignity and human rights, and prevent the loss of life in the region.
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