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Disciplinary and Performance Problems Plague Border Patrol

Alex Nowrasteh

A new report by federal watchdogs at the U.S. Government
Accountability Office found that more U.S. Border Patrol agents are
leaving than can be hired. This should concern President Donald
Trump, who in January signed an executive order to hire 5,000 more
agents. The hires will likely come in the form of a bill introduced
in Congress by Rep. Michael McCaul, R-Texas, last month, the Border
Security for America Act.

However, Border Patrol agents have significant disciplinary,
performance and even corruption problems that should be resolved
before hiring more agents.

Border Patrol is the second-largest federal law enforcement
agency in the country, with nearly 20,000 agents. They have
extraordinary powers to enter property close to the Mexican border
without a warrant and run checkpoints within 100 miles of any land
or sea border, yet without the oversight that is common in even
small-city police departments.

President Trump said that
hiring 5,000 additional Border Patrol agents will help “restore the
rule of law in the United States” – but such a laudable goal is
impossible if law enforcement officers are themselves riven by
corruption, misconduct, poor performance and a lack of
discipline.

James Tomsheck, the former head of an internal affairs
department that oversaw Border Patrol, recently said that it is
“conservative to estimate that 5 percent of the [Border
Patrol] force” is corrupt. This corruption and misconduct
ranges from the brutal to the commonplace. Border Patrol agent
Esteban Manzanares assaulted, kidnapped and raped three illegal
immigrants he apprehended while on the job and later committed
suicide when the police surrounded his apartment. The youngest of
his victims was still bound in his home at the time. Oscar Ortiz
was convicted of conspiring to bring at least 100 illegal
immigrants into the United States and, oddly enough, being an
illegal immigrant himself with a false claim to U.S.
citizenship.

These problems exist because Border Patrol isn’t monitored
properly. After 9/11, Congress created a new agency called Customs
and Border Protection (CBP) inside of the new Department of
Homeland Security, which eventually came to house Border Patrol.
Congress forgot to transfer Border Patrol’s old internal
affairs department and didn’t create a new one. Only in
August 2014 did Tomsheck’s internal affairs department
finally get the authority to investigate criminal misconduct.

Confusing and contradictory data make it difficult to gauge the
extent of corruption and misconduct problems at CBP. According to
one source, 158 CBP employees (which includes Border Patrol agents)
were convicted or charged with corruption from 2005 to 2016.
Another source claims there were 358 such convictions, but it
doesn’t distinguish between CBP employees and non-CBP persons
who conspired with them.

Fortunately, the Office of Personnel Management does report data
showing how many agents are terminated for disciplinary and
performance reasons. To be clear, not all of those terminations
represent corruption, but they do indicate performance issues – at
minimum. A new Cato Institute study analyzed OPM data from 2006
through 2016 and found that Border Patrol agents had the highest
termination rate of any large federal law enforcement agency.
Border Patrol agents were 49 percent more likely than other CBP
officers to be terminated for such reasons. They were 54 percent
more likely to be terminated than guards at the Bureau of Prisons,
six times as likely as FBI agents, 7.1 times as likely as Drug
Enforcement Administration agents and 12.9 times as likely as
Secret Service agents.

A good first step to fixing these personnel problems is
implementing the Homeland Security Advisory Council’s
recommendations to speed investigations and streamlining internal
affairs. One particularly important recommendation is bringing the
number of internal affairs officers up to 729, which would give
Border Patrol as least as much internal affairs oversight as the
New York City Police Department. Arizona Republican Rep. Martha
McSally’s amendment to McCaul’s border bill that
guarantees 550 full-time internal affairs investigators for CBP is
a good start.

Congress should go further and not authorize any additional
net-hires at Border Patrol until adequate oversight brings the
termination rate down to that of other large federal law
enforcement agencies.

The GAO should audit internal affairs at Border Patrol and use
its forensic audits and investigative services to conduct
undercover investigations to insure compliance. Communities should
also be able to form civilian review boards to oversee all
complaints made against agents, because law enforcement functions
better with local trust and cooperation.

President Trump said that hiring 5,000 additional Border Patrol
agents will help “restore the rule of law in the United
States” – but such a laudable goal is impossible if law
enforcement officers are themselves riven by corruption,
misconduct, poor performance and a lack of discipline. Restoring
the rule of law starts by holding law enforcement officers
accountable to the law before expanding their numbers.

Alex
Nowrasteh
is an immigration policy analyst at the Cato
Institute’s Center for Global Liberty and Prosperity.