< Stepping into the Light


Friday, March 14, 2014

As we previously and exhaustively reported, US customs and Border Protection, under the aegis of the Department of Homeland Security, is one of the least transparent agencies in the country. But late last week, sparked by a leak of a review done by the Police Executive Research Forum, CBP shone a little light on its processes. Brian Bennett, National Security Correspondent for the Los Angeles Times and the Chicago Tribune was the recipient of that initial leaked report.

BRIAN BENNETT:  And they came to conclusions. They came to some, some pretty damning conclusions that sometimes the Border Patrol had acted out of frustration when they fired at people throwing rocks and sometimes the Border Patrol had stepped in front of moving vehicles in order to justify shooting at the driver.

BROOKE GLADSTONE:  If you stand in front of a car and it's driving at you, that constitutes deadly force and then they can shoot back.

BRIAN BENNETT:  That's the justification, yes.

BROOKE GLADSTONE:  Now, why did CBP commission this survey, to begin with, do you know?

BRIAN BENNETT:  You have to go back to 2012 to understand that. There were two shooting incidents on the border that got a lot of media attention and also the attention of the Mexican government.

BROOKE GLADSTONE:  What was special about these cases?

BRIAN BENNETT:  In September, 2012 a man of about, about 36 years old was having a picnic on the Rio Grande and he was shot and killed when a Border Patrol agent in a boat opened fire on the banks, and Border Patrol agent reported that he had been pelted with rocks. And the Mexican government was upset because this man apparently was just enjoying being outside with his family on, on the banks of the river. And then a month later, there was a 16-year-old boy who was on the Mexican side of the border fence in Nogales, Mexico, which is right across from the Nogales, Arizona, and he was shot multiple times by a Border Patrol agent. Of the ten shots that hit him, eight of them came from behind and hit him in the back.

In both of those cases, there is no indication that the people who were killed were armed. It was in response to that media outcry in late 2012 that Customs and Border Protection came forward and said, okay, we're going to do an internal review and we’re also going to commission this report from this outside group.

BROOKE GLADSTONE:  You said it was a damning report. It criticized the Border Patrol for lack of diligence in investigating these incidents. What was the response of CBP?

BRIAN BENNETT:  So this report was given to Customs and Border Protection in early 2013 and it didn't see the light of day. And also was leaked an internal response to the recommendations, and the Border Patrol outright had decided not to adopt those two recommendations that the Police Executive Research Forum had singled out as their most significant recommendations.


BRIAN BENNETT:  One focused on the Border Patrol’s policy towards shooting at people throwing rocks. What it said was that when people throw rocks at Border Patrol agents, Border Patrol agents should first try to find cover, and the Border Patrol had never expressly told its agents to do that.


BRIAN BENNETT:  And the other recommendation was that when Border Patrol agents had a moving vehicle driving towards them that they shouldn't shoot at the driver, because then you have a disabled vehicle that is still careening out of control.

BROOKE GLADSTONE:  And then, just a week after your story ran, Customs and Border Protection released a four-page memo to the public, reversing its rejection basically of those recommendations.

BRIAN BENNETT:  And also, they released the Use of Force Handbook, which the agency had never publicly released before.

BROOKE GLADSTONE:  So is it because of Jeh Johnson, the new head of DHS, that there is a move towards less opacity?

BRIAN BENNETT:  It's possible. It does look like he is trying to make some sort of shift in the culture there. Also, it’s worth mentioning that Customs and Border Protection has a new commissioner, Gil Kerlikowske. He told senators during his confirmation hearing in January that he had never worked at a police department that did not release its use of force policies, and he intended, when he arrived to Customs and Border Protection, to be more transparent.

BROOKE GLADSTONE:  Do you think that these new guidelines will stick, that there'll be fewer of these deadly force incidents at the border? And do you think we’ll ever know the high profile cases of officers standing in front of the cars or shooting across the border - can those people ever be investigated and maybe even prosecuted?

BRIAN BENNETT:  There are two tracks to an investigation after a shooting. One, there’s a criminal track. These shootings are investigated by a local authority like the sheriff's office, or sometimes the FBI steps in. And those criminal investigations, they’ll either be closed or they’ll go to trial. And then there's another truck, which is the administrative investigation inside the Border Patrol. And from the report that the law enforcement experts put together, after reviewing all of these cases, they can the conclusion that there had been a, a lack of diligence on the Border Patrol’s part in reviewing this.

BROOKE GLADSTONE:  Have any of these cases gone to trial?

BRIAN BENNETT:  None of the cases in the last three years have, have gone to trial.

BROOKE GLADSTONE:  None of those 67 cases.

BRIAN BENNETT:  Not as far as I know.

BROOKE GLADSTONE:  Mm-hmm. What is the next big piece of information you’re looking for?

BRIAN BENNETT:  I really want to know how many people had been disciplined for exceeding the, the use of force policy. There have been a number of actions on the border that shocked the conscience, frankly, and the big question is, has anyone been account for that, and does the Border Patrol have the willingness to take action against agents that don't act in the best interest of the public?

I, I also want to see what happens with these new use of force directives that the head of the Border Patrol released. So  right now we have four pages of a directive that are really four pieces of paper, and the question is, will the directives trickle down into the workforce and really make a difference for the safety of the people living in and operating around the border?

BROOKE GLADSTONE:  Brian, thank you very much.

BRIAN BENNETT:  Happy to be with you.

BROOKE GLADSTONE:  Brian Bennett is the National Security Correspondent for the Los Angeles Times and the Chicago Tribune


Brian Bennett

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Brooke Gladstone