Part 2 of 2. Read the first article in this series here.
As a Border Patrol agent in the mid-1990s and early 2000s, I witnessed the San Diego Critical Incident Investigative Team (CIIT) units multiple times responding to rockings (incidents when people throw rocks at agents or our trucks) and shootings. CIIT units were always the first on the scene, arriving long before the local cops or feds came snooping around. What I saw were these agents making the scene appear worse than it was. In one specific rocking, I can recall seeing CIIT Border Patrol agents throw rocks into the windshield of a service vehicle. The agent involved had shot south into Mexico because he claimed migrants threw rocks at him. But the vehicle had little damage, so CIIT agents created the scene to justify the shooting. Fortunately, nobody was injured, and there were no witnesses found in this case.
As was demonstrated in the recent briefing on the Anastacio Hernández-Rojas case before the Inter-American Commission on Human Rights, CIIT units are used to get rid of witnesses and evidence such as video, to sit in on interviews with witnesses, participants and victims, to obtain evidence before the investigative units can get to the evidence, and to do anything else that will help gum up the investigation.
Am I stating that the U.S. Border Patrol illegally operates and uses a secret investigation team to protect agents and the agency from allegations of criminal conduct? Yes, I am.
Their first priority on a scene is to advise the sector commanders on what is going on. Is it a shooting? A beating? Are there witnesses? Cameras? In other words, is this a situation that sector and D.C. need to blame on a rogue agent, or is this a situation they should fight? In the Hernández-Rojas case, CIIT was called in within 90 minutes of the incident, and the San Diego police were never called. They only discovered the use-of-force incident when a reporter asked what was going on down at the port. The CIIT unit had complete control of the scene for over 15 hours before the police homicide unit appeared.
Second, CIIT units are to obtain as much information on the investigation as possible. In the Hernández-Rojas case, CIIT agents sat in on every interview of agents involved. They helped get rid of witnesses and videotape evidence. They obtained medical records and prevented the detectives from getting them in a timely manner. They sat in on meetings about the investigation held by the homicide unit. These CIIT Border Patrol agents reported their findings to then-San Diego Deputy Chief Rodney Scott, who reported to D.C. command. And as the briefing shows, D.C. command then used this inside information to form press releases and responses to questions.
Third, CIIT units are expected to associate both on and off duty with investigators. CIIT Border Patrol agents spend a great deal of time hanging out with local and even federal investigators who are responsible for investigating Border Patrol use-of-force incidents. By doing this, they learn the lingo. They become friends with the very people who are supposed to be investigating them. This makes it difficult for investigators to maintain independence and objectivity in conducting investigations on the agency. It also allows CIIT agents to spy on investigations and report back to their command.
Fourth, CIIT units produce a report that is then given to the agent’s defense attorneys. You read that correctly. The Border Patrol CIIT units obstruct justice and obtain inside knowledge of what the investigators produce for the prosecution and then craft a report for the agency attorneys and the agent’s attorney to defend them in criminal and civil court.
I also want to note that when a CIIT unit is not available, Border Patrol will often send a different sector unit, like the Intelligence Unit, to a use-of-force scene to hide witnesses and evidence from investigators. The Border Patrol knows that if they can gum up the scene from the start, local and federal investigators will have a difficult time proving the use of force was criminal. They also know that investigators will look for any reason to side with them because they are, after all, law enforcement brothers.
What About DHS-OIG and CBP-OPR?
Whether it’s the DHS Office of Inspector General (OIG) or the CBP Office of Professional Responsibility (OPR) that takes the case, either agency is allowed to conduct an investigation simultaneously or they can wait and see what the local or state agencies find. To those outside of law enforcement, having all of these investigative agencies seems like a great idea. You may think that with all of these people looking into the case, there’d be no way an agent committing a bad shooting could not be held accountable.
The reality is that having too many agencies involved just further muddies up the investigations. Witnesses interviewed over and over, evidence obtained by one agency and not by the other, just confuses the investigation and makes it difficult for prosecutors and juries to figure out the truth in the end.
But even if everything goes as it should and everyone does a great job, the Border Patrol and CBP have a few other tricks up their sleeve to get agents off should they need to.
One of the greatest assets both agencies have is that they continually encourage agents to leave the Border Patrol and CBP and join OPR or OIG. It is common, almost routine even, that when an investigation is being done by OIG or OPR into Border Patrol or CBP, one of those investigators is a former agent of that agency. The argument given by OIG and OPR is that it helps to have a former agent who understands the system. This is ridiculous and is simply an excuse. The cultures of Border Patrol and CBP are that current and former agents are dedicated to those agencies. In the patrol we said that we “bled green,” meaning our dedication was to the agency and not to the Constitution or anything else.
There are many examples of this. The corruption within DHS-OIG is only second to the corruption in the Border Patrol and CBP. Entire OIG or OPR offices have been investigated and found to not be doing any actual investigative work. This was what happened in the Hernández-Rojas case. It was only through affidavits by former high-ranking CBP and OIG officials that attorneys discovered the OIG file basically contained copies of the original San Diego homicide investigation. This same situation was discovered in the McAllen, Texas, OIG office and even led to criminal charges being filed against the investigators after it was discovered that they had forged documents trying to show they had done investigations when they did not. You can read more about this here.
Even with all of these safeguards against accountability that the Border Patrol and CBP have at their disposal, there is still one more advantage they have built into the system that protects them and denies victims justice. For me, it is perhaps the most egregious part of the system. As in all the other cases involving deaths at the hands of Border Patrol and CBP agents, the investigations conducted by OIG and OPR are secret.
In all of these cases, OIG and OPR hand their work over to the Department of Justice (DOJ) for prosecutors to consider charging agents. When the DOJ declines, they issue a press release. In general, they state that the investigation findings did not support prosecution of the agents and the matter is therefore closed. This is the only thing released from OIG, OPR or DOJ, just a decline to prosecute letter.
Victims’ families are never allowed to know what the investigation found or did not find. They are never given the names of the investigators. Their attorneys cannot know if these investigators are former agents or how often those investigators have failed to do their jobs in the past. They cannot even know who the prosecutors at DOJ are that reviewed the file and declined to prosecute. DHS claims that they are unable to release these cases or the names of those involved because it could harm national security. Although, it should be noted, they have no problem releasing information on investigations when they are looking to prosecute others for crimes.
Secret Investigations and State-Sanctioned Violence
The vast majority of those 130 deaths at the hands of Border Patrol and CBP agents are people who were poor. Most were migrants. Some were drug-addicted. Some had criminal records. The Border Patrol and CBP are aware of this. They are aware that public opinion and the courts will believe their word over a migrant’s word. They know that even with video evidence as existed in the Anastacio case and many others, that the case will not likely ever even get to trial because they have secret CIIT units whose only job is to ensure that it never does.
This system that the U.S. government has created under DHS is one of private investigations. If I wrote this article and replaced the agency names with Russian or Mexican ones, we would be pointing our collective finger at those countries and accusing them of carrying out secret investigations that protect crooked government officials while denying victims their rights.
Knowing that this system is designed by those leading these agencies in response to agents killing and maiming victims, I don’t think it is going too far to say that our government is supporting and covering up state-sanctioned violence.
I do not believe even Congress knows about the Border Patrol CIIT units. I don’t think they want to know. If they acknowledged the work and proof done in the Anastacio case, they would have to go through every killing at the hands of a Border Patrol agent for the last 20-30 years. Without a special commission with powers to investigate and seize the CIIT files in every sector, we may never know all the crimes my former agency covered up with these secret units. Claudia Patricia’s family may never know how the CIIT unit got OIG and DOJ to decline prosecution.
So, now you know how the agency gets away with murder. Yes, I have been threatened to keep my mouth shut about this, to stop telling the truth, to quit saying the secrets of the Border Patrol out loud. There are at least 130 families out there wondering how they got away with it. Now they know.
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Reposted from jennbudd.com with permission and minor edits. Photo by Barbara Sandoval
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