Originally Published in The Intercept
Ryan Devereaux - December 27, 2020
THE NATIONAL BORDER PATROL COUNCIL’S Twitter account was firing on all cylinders. The union, which represents roughly 18,000 Border Patrol agents, spent October and early November feeding its followers an unending stream of hardcore “Make America Great Again” election content. Among the NBPC’s scores of posts were videos of pro-Trump caravans rolling through cities and towns across the country, baseless claims about voter fraud, and bilingual testimonials from Border Patrol agents heralding President Donald Trump’s regard for law and order.
On “The Green Line,” the NBPC’s podcast, the union’s vice president Art Del Cueto enthusiastically recounted the pro-Trump caravan he had recently joined and fondly recalled the night he spent in New York City four years earlier, when he was alongside Trump and his family watching the 2016 election returns come in at the Hilton in midtown Manhattan. In the years since then, Del Cueto said, Trump had “neutralized” North Korea; exposed deep state corruption inside the FBI, the CIA, and the National Security Agency; and “been directly involved to help uncover the widespread pedophilia in the government and in Hollywood.”
Since the presidential election was called, the union’s firehose of tweets has slowed to a trickle. In a “Green Line” episode aired in early November, the enthusiasm in Del Cueto’s voice gave way to despair and, at times, paranoia. The Tucson, Arizona-based host described feeling “heartbroken” that his home state might have played a role in the administration’s demise. Noting that he had visited the Oval Office more than a half-dozen times under Trump, he spoke of the people he had met through the NBPC’s close ties with the presidency. “I really hope it’s not over,” he said. If Trump lost, Del Cueto said, the nation could expect a “crazy uptick in just lawlessness at the border” and “more hate and discontent towards our law enforcement.” The “socialist regime” of Joe Biden would open the border to criminals, he warned, while mauling the Second Amendment. “We’re in trouble,” Del Cueto told his listeners. “He’s going to take away your guns and your ability to defend yourself.”
After four years of full-throated support for Trump, and with the transition to Biden underway, the ground beneath the Border Patrol union and the agents it represents is clearly shifting. What those shifts will mean in the coming years is uncertain. The NBPC ignored The Intercept’s repeated requests for interviews with Del Cueto and NBPC President Brandon Judd, the union’s most vocal supporters of the president’s immigration and border policies.
Though the union touts itself as the voice of the Border Patrol’s rank and file, an active duty agent on the U.S.-Mexico divide, speaking on condition of anonymity because he is not authorized to speak to the press, provided a different take of the present moment. While stipulating that he does not “carry the majority opinion of the agents on the ground,” the agent told The Intercept that he expects the incoming administration to “bring balance back to homeland security.”
The overall mission and the fundamental dynamics between Washington, D.C., and personnel in the field won’t change, the agent said. “There were a lot of deportations under Barack Obama,” he noted. “There were a lot of deportations under President Trump, and I’m pretty sure there’s going to be deportations under Joe Biden.” The main difference between a Trump and Biden White House, the agent argued, is that the latter will bring with him experienced professionals who can work the levers of the immigration enforcement machine. “I think the Biden administration is going to come in with a plethora of more experience in disseminating regulations so that the agents, the boots on the ground, have a better direction of what to do [and] how to do it,” the agent said. “It was just chaos under Trump.”
As for the union, the agent said the NBPC is now reaping what it sowed. “In politics, when you play hard, you fall hard,” he said. Rattling off a list of areas in which he believed the union failed in its core mission, including obtaining overtime pay that was the subject of litigation under Obama, the agent said the NBPC needs to reassess its approach “because the way they’ve been doing it for the past four years is pretty shameful.”
“What exactly did Border Patrol agents receive under Donald Trump?” the agent asked. “We didn’t get anything. We didn’t get extra funding. We didn’t get our overtime pay back,” he said. “We took all these hits for this guy and we got nothing — we got a border wall while we’re suffering a manpower shortage across the nation. That’s what we got.”
That the leadership of the Border Patrol’s union was adamantly pro-Trump was not exactly shocking, but the relationship between the administration and partisan elements of the homeland security apparatus went beyond the fealty one would expect from a right-wing police union to a right-wing politician.
Under Trump, the nonunion leadership of the Department of Homeland Security often sounded less like apolitical public servants and more like the Fox News talking heads, which a number of them in fact were. In the meantime, their agencies were routinely employed in hyperpoliticized applications of federal law enforcement power, including the systematic separation of migrant families as a means to deter would-be asylum-seekers, the prosecution of humanitarian aid workers, the destruction of sacred and protected wilderness in service of border wall construction, and the deployment of homeland security surveillance and special operations elements against protesters and journalists in American cities.
“DHS has been completely politicized,” Gil Kerlikowske, former commissioner of U.S. Customs and Border Protection under Obama, told The Intercept. “CBP and ICE in particular.”
For many Americans, a recognition of that politicization crystalized in July, when video of a Border Patrol tactical unit bundling a protester in Portland, Oregon, into an unmarked van went viral. The DHS presence in the city became a major strut in Trump’s reelection bid. The only reason the so-called BORTAC teams were needed was because Portland’s Democratic leaders had ceded the city to radical leftists, the president and his allies would say, arguing that the abdication of duty was part of a broader pattern in Democrat-run cities across the country.
Geared up like commandos, the BORTAC teams were deployed under the leadership of Chad Wolf, a former Transportation Security Administration lobbyist who spent the bulk of his tenure as the top official at DHSunconfirmed by Congress. According to a decision by the Government Accountability Office, both Wolf and his deputy, Ken Cuccinelli, were appointed to their positions illegally. While Wolf and Cuccinelli echoed the president’s lines in public, a whistleblower complaint filed by the former head of intelligence at DHS claimed that the two men engaged in an internal effort to manipulate intelligence reports to align with the Trump’s talk of a dangerous left-wing menace, while downplaying threats posed by white supremacists. Wolf denied the whistleblower’s allegations.
Further evidence of politicization emerged in October, when NBC News revealed that DHS directed personnel to make sympathetic statements about Kyle Rittenhouse, a 17-year-old accused of murdering two peopleand wounding a third at a Black Lives Matter protest in Kenosha, Wisconsin. The directive followed comments Trump made suggesting that Rittenhouse, an outspoken supporter of his administration, had acted in self-defense. As the election drew nearer, DHS amped up the rhetoric of approaching danger, with the Border Patrol producing a fictionalized video of an immigrant knifing an American citizen to death, and Wolf and Cuccinelli touring battleground states where they warned of “evil people who seek to travel to the United States with the intent of harming and killing Americans.”
With Trump’s final days in office now ticking away, the question for the incoming administration is what to do about a massive — and massively powerful — federal law enforcement entity that has shown itself to be profoundly susceptible to politicization. The transition team for Biden, the man millions of Americans are counting on to undo Trump’s policies, declined to make any of the president-elect’s immigration advisers available for comment. DHS and CBP did not respond to requests for comment.
Last month, Biden tapped Alejandro Mayorkas, an Obama-era DHS veteran, to lead the colossal department. Prior to serving as deputy secretary of Homeland Security, Mayorkas ran U.S. Citizenship and Immigration Services, an office that administers citizenship, visas, asylum, and other immigration benefits. The selection of Mayorkas, the son of Cuban refugees whose experience in DHS is linked to the granting of benefits rather than the execution of deportations, has been seen by many as a repudiation of the Trump era. “A lot of us are very hopeful,” a senior asylum officer, speaking on condition of anonymity because he is not authorized to speak to the press, told The Intercept. “The incoming DHS secretary has a lot of immigration experience, and not in the enforcement side.”
Beyond policy, one of the thorniest problems the next head of DHS is likely to face is the entrenchment of an insular, hard-right worldview prevalent among influential officials within the department’s border and immigration agencies. The story of where that politicization came from, and what it could mean for the incoming administration, begins long before Trump entered the picture and runs directly through the nation’s largest and most troubled law enforcement agency.
A New Day
In March 2016, Stephen Miller got on the phone for an interview with Brandon Darby. At the time, Miller was an adviser on Trump’s election campaign. Darby was a left-wing activist turned FBI informant and head of border coverage for Breitbart News, then overseen by Steve Bannon, who would soon join Miller on the campaign and follow Trump into the White House. The interview was brief and presented as a scoop, with Darby asking Miller what role the Border Patrol’s union might play in a Trump administration.
Miller gushed about the union’s role as “the only voice for the agents” and “the only way agents can protect themselves from political appointees and special interests” before delivering his big reveal. “I am here today to say that we are going to work closely, directly, and intimately with the National Border Patrol Council to develop a border policy for this nation,” he announced. The young adviser went on and on, eagerly vowing in various ways that the Border Patrol’s union would play a central role in policymaking under Trump. In the end, he said, “It will be a new day in America for the National Border Patrol Council.”
Trump had already met with Border Patrol union officials nearly a year earlier, during a visit to Laredo, Texas. The encounter received a poor reception on “The Green Line,” with the show’s hosts dismissing the invitation Trump received as a cynical move by a local union official. Miller’s interview with Darby was different. “I like what he’s saying. I think what he’s saying should energize most agents,” “Green Line” host Thane Gallagher said of the interview. Co-host Shawn Moran agreed, adding that he was “really glad that a presidential candidate is talking about people that are on the frontlines of immigration enforcement and border security.”
One week later, NBPC leaders decided, for the first time in the union’s history, to endorse a presidential candidate, siding with Trump. Though ostensibly reflecting the will of thousands of agents, the historic decision was made by a small circle of 11 senior NBPC officials. Moran thanked Darby and Miller “for all the behind the scenes work that’s been going on,” and added that Judd, the NBPC president, had “been talking to Mr. Miller for quite a while now, working out the different details of this.” Miller’s vows seemed to come to fruition, with the president signing an executive order during his first week in office calling for a radical expansion of the Border Patrol and ICE. A year later, when the administration was met with internal resistance over plans to deploy troops to the border as part of “Operation Faithful Patriot,” which had been criticized as a political maneuver timed for the unfolding midterm elections, Miller successfully fought back in a contentious West Wing meeting — and Judd was right there with him.
That a Border Patrol union chief would play any role in a White House meeting concerning the movement of U.S. troops spoke to the deeply unconventional relationship between the NBPC and the Trump presidency. Still, it wasn’t always clear exactly how the media appearances and special access union leaders enjoyed benefited agents in the field.
When Trump’s demands for border wall funding led to the longest government shutdown in U.S. history, the NBPC, via Judd, stood behind the president, even as agents on the ground went without pay. In the end, the massive expansion of the Border Patrol never came. Instead, Border Patrol staffing levels declined under Trump. A DHS inspector general report found that CBP, which oversees the Border Patrol, paid a private firm nearly $300 million to recruit and hire the 7,500 officers and agents Trump’s order called for. The effort netted exactly two accepted job offers.
The news wasn’t all bad, however, at least not for the union’s top officials. In late 2019, the NBPC managed to secure a highly unusual contract deal that would allow the union to pull more agents out of the field and into its ranks, where they would be freed up to offer political commentary, just in time for the 2020 election. A former senior administration official told the Washington Post that the arrangement was “a total quid pro quo.”
For James Tomsheck, the Border Patrol’s posture under Trump was the latest chapter in a long, dark saga. After having devoted most of his adult life to federal law enforcement, serving 23 years as a Secret Service agent, Tomsheck was appointed as CBP’s head of internal affairs in June 2006. He spent the next eight years as the top official investigating corruption and abuse inside the nation’s largest law enforcement agency.
The origin story of CBP was one of vast, unchecked growth powered by the great post-9/11 reshuffling that produced the Department of Homeland Security. Today, most of the agency’s roughly 60,000 employees fall into two categories: the blue uniformed officers posted at the nation’s ports and the green uniformed Border Patrol agents who work between them. Three months after Tomsheck started his job, the number of agents in green began increasingly substantially. In 2001, the Border Patrol employed just over 9,000 agents. By the end of the Bush administration it was twice that, and under Obama the Border Patrol would grow to 21,000 agents.
“I believe it led to the greatest compromise of law enforcement integrity our country has ever seen.”
“My job was to coordinate the personal security protocols to enable finding an adequate number of agent applicants suitable for those positions, which became a significant challenge,” Tomsheck told The Intercept. As most law enforcement scholars will attest, rapid, politically pressured expansion of policing agencies tends to result in disaster. Training and hiring standards fall by the wayside and dangerous individuals find themselves with a badge and a gun. For Tomsheck, the warp-speed enlargement of CBP and the Border Patrol specifically was the epitome of that dynamic: “I believe it led to the greatest compromise of law enforcement integrity our country has ever seen.”
During Tomsheck’s tenure, an average of nearly one CBP employee a day was arrested on misconduct charges. Drug trafficking within the border security agency was a serious problem — with Tomsheck’s investigators uncovering CBP employees who admitted to working for Mexican organized crime — as were violent offenses, including murder and rape. In 2009, the Justice Department established new protocols and priorities that would make corruption within the nation’s federal border security agencies the FBI’s number one domestic criminal priority. Tomsheck’s office cultivated a strong relationship with the bureau, building Border Corruption Task Forces, or BCTFs, where investigators from CBP internal affairs would work alongside agents from the Drug Enforcement Administration, the FBI, and ICE.
Through that work, Tomsheck eventually came to believe that between 5 and 10 percent of CBP’s workforce was either actively or formerly engaged in some form of corruption; other senior officials estimated that the figure could be as high as 20 percent, which in an agency as large as CBP would translate to more than 10,000 individuals. But as the presidency passed from Bush to Obama, the head of internal affairs found that his efforts at rooting out corruption brought him into direct conflict with Border Patrol leadership. In 2011, Tomsheck filed a whistleblower complaint reporting that the chief of the Border Patrol had berated him for failing to adhere to the Border Patrol’s “corporate message” by laying out the facts of the agency’s corruption problem to lawmakers, and had “consistently resisted and attempted to obstruct integrity initiatives” at CBP, ordering the internal affairs office to redefine corruption so that its total number of cases wasn’t so high.
On top of the problems created by the post-9/11 surge in agents, the Border Patrol’s propensity towards corruption, obfuscation, and abuse stems from a combination of cultural and historical factors, Tomsheck argued. “Border Patrol brings to the position a strong paramilitary self-identity, believing they are not restrained by the same constitutional restraints placed upon all of law enforcement,” he said. That identity rests upon a longer history of being seen a backwater agency, one that was chronically understaffed and under-resourced. “They developed a culture of getting the job done and having to develop many workarounds to get the job done,” Tomsheck said. “Through decades and decades of operating under those conditions, they’ve come to think that they are not confined to engage in the same way as other law enforcement organizations.”
“Border Patrol has evolved into a law enforcement organization that, more than anyone I know, operates under the theory of a good ol’ boy network.”
Since the creation of CBP, the Border Patrol’s upper ranks have been disproportionately populated by a relatively small circle of individuals — nearly all of them men, though there have been some exceptions such as recently retired Chief Carla Provost. As investigative reporter Melissa del Bosque documented earlier this year, the so-called Douglas Mafia, a reference to the officials’ collective roots in Douglas, Arizona, embodied an “entrenched us-against-them defiance” that impacted the attitude of the Border Patrol as a whole. Tomsheck experienced that attitude firsthand.
“Border Patrol has evolved into a law enforcement organization that, more than anyone I know, operates under the theory of a good ol’ boy network,” he said. That network, he went on, routinely engages in efforts to shape politics in a manner that’s anathema to the idea of nonpartisan law enforcement. “In CBP,” he said, “I found the Border Patrol was an agency that courted politicians at every opportunity in an effort to sell the agenda and to assert influence over the process.”
One of the most important junctures on the road to Trump and the politicization of DHS, and one with potentially profound lessons for the coming Biden administration, came in the summer of 2014. In June of that year, photos leaked to Breitbart, showing women and children crowded into holding cells in South Texas, were reported as evidence that “thousands of illegal immigrants have overrun U.S. border security and their processing centers in Texas along the U.S./Mexico border.”
Apprehensions across the border were in fact at their lowest levels since the 1970s. In the preceding year, however, apprehensions of Central American children had jumped by nearly 150 percent. A narrative of crisis at the border took hold, and in response, the Obama administration built enormous family detention centers to deter others from coming north. For critics on the left, the pivot to detention was seen as an appalling response to a humanitarian emergency. On the right, however, the images obtained by Breitbart were further proof that the Democrats were ceding the border and lawlessness was setting in.
The photos appeared in a moment of sharp ideological divide over the proper role of law enforcement in society. At the same time that children were showing up to the border, a series of police killings was fueling Black Lives Matter protests across the country. By the end of the year, a movement to support the police, complete with its own flag, had rose up in response.
It was against this contested backdrop of national discord over law enforcement and the border in the waning days of Obama’s presidency that Stephen Miller saw fit to make inroads with the Border Patrol’s union, publicly assuring its members that Donald Trump cared. Trump himself appeared on “The Green Line” to drive the point home soon after, agreeing with the hosts that of course there was a link between refugees and terrorists, and asserting that it would take another 9/11-level trauma for the nation to begin taking border security seriously.
Tomsheck retired from CBP in early 2015, a year before Trump made his pitch to the union. His exit followed a “reassignment” that to him looked and felt like an effort to push him out of the agency, especially after anonymous DHS officials began telling reporters that he had been insufficiently aggressive in his internal investigations. Tomsheck, who maintains that the claims were patently untrue, pushed back in a sweeping interview with the Center for Investigative Reporting in 2014, recounting the numerous accountability roadblocks he encountered at CBP. He revealed that he believed “at least a quarter” of the 28 fatal CBP shootings in the previous four years were “highly suspect,” with Border Patrol leadership stepping in to justify agents’ use of force rather than conducting thorough investigations.
The incidents Tomsheck referred to were but a fraction of the fatal encounters involving CBP in recent years. Four years after he left the agency, an investigation by The Guardian uncovered 97 cases of CBP personnel using deadly force on and off the job since 2001, resulting in the deaths of at least 28 U.S. citizens and six children. Meanwhile, the murkiness surrounding internal investigations of alleged Border Patrol abuses and corruption has not lifted. Looking back, the former investigator sees a clear line between the Border Patrol’s political posturing in the later years of the Obama administration and its centrality in the era of Trump.
“I wasn’t surprised at all to see them attempting to use the political process unfolding between 2015 and today to their advantage,” Tomsheck said. “I think they saw an opportunity with the announcement by Donald Trump that he was running for president to gain political favors by attaching themselves to someone that seemed to have policies that were in line with their view of the world.”
Among the most talked about challenges Biden may face upon entering office is a scenario in which waves of unaccompanied children and families show up at the border seeking asylum — similar to 2014 but this time amid a deadly global pandemic. “The general consensus among agents is that we’re going to be getting another round of caravans because of the change in administration,” said the Border Patrol agent who spoke to The Intercept. “I think that Joe Biden is going to give a lot of hope to folks and we might be completely overwhelmed, yet again.”
Should that influx come, it will follow what has already been a year of hardship along the border. In Arizona, law enforcement officials have said that the Trump administration’s policies have revived “the dark days” of human smuggling in the state. This year, Arizona approached the highest level of migrant remains recovered in the desert in a decade. Across the border there have been cases of migrants falling to their deaths from the border wall, including a 19-year-old Guatemalan woman in Texas who was 30 weeks pregnant and an unidentified woman in New Mexico. “We’re now being plagued with hospitalization because these folks are still climbing over that wall,” the Border Patrol agent said. “Your guys that are supposed to be protecting the homeland, because of his border wall, are now sitting in a hospital watching a migrant getting treated medically.”
When asked what he and his colleagues would need to respond to another large influx of unaccompanied children and families, the agent focused on the practical and the logistical: having enough food, clear protocols and functioning lines of communication, and sufficient staffing. More arrivals means more paperwork, which means migrants are locked in what are supposed to be temporary holding cells for longer periods of time, the agent explained. “It lengthens the stay for those folks that are here,” he said. “Then you start talking about inhumane, not living quarters, but I guess temporary living quarters, where they’re stuck in a cell for a whole fucking week.”
In 2014, the last time Biden was in the White House and national attention was focused on the border, journalist and historian Garrett Graff published a sweeping investigative examination of CBP for Politico Magazine, explaining how the agency’s culture of corruption gave rise to its moniker “The Green Monster.” Graff returned to the subject in 2019, exploring how the underlying message that was sold to would-be agents during the post-9/11 hiring surge — that by joining the Border Patrol they could become borderlands commandos in the global war on terrorism — produced an incongruity between the self-identity of the Border Patrol and the reality of the border. “CBP went out and recruited Rambo,” he wrote, “when it turned out the agency needed Mother Teresa.”
Though it is clear there are agents who understand their job is not an action movie, images of a heavily armed tactical team in night-vision goggles raiding a humanitarian aid station in the middle of an Arizona heatwave are a reminder that the Rambo mentality is alive and well in the Border Patrol. That fact, combined with the other conditions Biden will face stepping into office — a potential increase in migration, the coronavirus pandemic, the interests of a multibillion-dollar border security apparatus, and the grievances of an influential pro-police political constituency — point to a tough road ahead.
If the Biden administration hopes to have any success in rolling back Trump’s legacy on the border, which itself was rooted in Obama’s legacy on the border, it will need to formulate a response to the politicization that has taken root in the government’s front-line homeland security agencies. Biden’s choice for CBP commissioner will be key, Tomsheck said. “That person needs to have the wherewithal to go toe-to-toe with Border Patrol leadership and confront their excessive use of force issues and tolerance of significant integrity problems,” he said. The ideal candidate would be “someone that is willing to work hard to undo the militarization that the Border Patrol has brought to CBP,” he said. “Someone that will work hard to once again install a culture of concern, caring and compassion for the mission, to engage with those persons they meet at the border in a manner that’s consistent with law enforcement — not consistent with military organizations.”