Originally Published in The Intercept
Ryan Devereaux - October 30, 2020
A House committee will subpoena CBP over its failure to produce documents related to a secret Border Patrol Facebook group.
U.S. CUSTOMS AND BORDER PROTECTION, the nation’s largest federal law enforcement agency, will face a subpoena from lawmakers in Washington, D.C., over its failure to produce documents related to a secret and highly inflammatory Facebook group that included thousands of current and former Border Patrol agents, according to a memo obtained by The Intercept.
Rep. Carolyn Maloney, chair of the House Committee on Oversight and Reform, sent a 17-page memo on Friday informing her colleagues of her intent to subpoena CBP for documents the agency “has been withholding from the Committee for more than a year,” and revealing a pattern of downgrading of consequences for agents involved in a secret social media group that drew national attention and condemnation.
“These documents include information about dozens of CBP employees who engaged in misconduct by participating in secret Facebook groups that shared racist, sexually violent, dehumanizing, and abhorrent material,” Maloney wrote. “They made these vile posts not only about immigrants — including a father and daughter who drowned in the Rio Grande — but also about a Member of our Committee.”
Despite a handful of firings over the summer, “CBP has refused to produce any documents that identify these employees or the specific abuses they engaged in, instead choosing to withhold these documents or redact them to conceal this information from the Committee,” Maloney wrote, adding that “the Trump Administration has not set forth any valid legal basis to withhold this information.” Among the reasons the administration gave for its “overt obstruction,” Maloney wrote, “is a fear that the identities and abuses of these employees could become public.”
According to Maloney’s memo to her colleagues, from March to September of this year, “CBP produced documents showing that it has now taken final disciplinary action against dozens of employees, including firing them, suspending them, and issuing Letters of Reprimand for their conduct. CBP has produced to the Committee final disposition documents in 106 cases. Based on the documents obtained to date, it appears that CBP fired four employees, suspended 37 employees, and issued Letters of Reprimand to ten employees.”
At the same time, however, the oversight chairwoman reported that the agency concealed, “the names, roles, and responsibilities of employees who have been fired”; “the identities and abuses of those who were disciplined, but remain on the job”; “information regarding the specific misconduct of the employees”; “proposed penalties for misconduct and any mitigating factors considered in reducing their punishments”; and “the names and roles of supervisors that signed off on punishment reductions.”
Maloney went on to report that “the limited information produced to the Committee shows that CBP significantly reduced penalties for numerous employees who they determined engaged in misconduct,” reducing three firings to suspensions and the duration of 19 other suspensions. “In communications with the committee, the Trump Administration has expressed more concern about protecting the reputations of employees who made racist and sexually depraved posts than the wellbeing of the children and families they interact with on a daily basis,” she said.
Maloney’s pursuit of the materials marks the latest blow for an agency that has long been the focus of charges of corruption, mismanagement, and lack of transparency since the post-9/11 founding of the Department of Homeland Security — which houses CBP and the Border Patrol — nearly two decades ago. Those charges have only escalated under Donald Trump, with DHS and the Border Patrol in particular taking on an overtly politicized role in the president’s “law and order” agenda.
“It is unclear why the Trump Administration is going to such extreme lengths to protect these employees who posted racist and sexually violent material, but President Trump himself has set the example of publicly and repeatedly defending similar actions by himself and others,” Maloney said. “For all of these reasons, the Committee will issue a subpoena to compel Mark Morgan, the Chief Operating Officer and Senior Official Performing the Duties of the Commissioner of CBP, to produce complete and unredacted copies of all documents described in the attached schedule.”
Customs and Border Protection did not respond to a request for comment.
In July 2019, ProPublica broke the news of the secret Border Patrol Facebook group, then known as “I’m 10-15,” which included nearly 10,000 current and former Border Patrol agents, and published screenshots that featured an image of Rep. Alexandria Ocasio-Cortez being sexually assaulted by Trump, as well as posts joking about the deaths of migrants on the border. Administrators quickly began scrubbing the page, but The Intercept had already gained full access to the group weeks prior and was in the process of archiving hundreds of racist and misogynistic posts when ProPublica’s story went live.
Through the archived posts, The Intercept was able to report that the content obtained by ProPublica was hardly an aberration and identified more than two dozen members of the group who had shared wildly misogynistic and racist content, often directed at the populations Border Patrol agents interact with on a daily basis. In a subsequent story, The Intercept revealed that Carla Provost, then the chief of the Border Patrol, was a member of the group, as was Rodney Scott, the current head of the patrol, as well as several other ranking officials.
In the wake of the disclosures, former Homeland Security Secretary Kevin McAleenan assured lawmakers that an internal CBP investigation was “proceeding very aggressively.” Meanwhile, the late Elijah Cummings, former chair of the Committee on Oversight and Reform, demanded that CBP turn over documents concerning the Facebook group. According to Maloney’s memo, CBP initially refused to brief committee staffers on the group, “claiming that they could not provide information while the investigations were ongoing.”
Since then, lawmakers tasked with conducting oversight of the nation’s sprawling border enforcement agencies have accused CBP and the Border Patrol of repeatedly interfering with their responsibility to hold agents involved in the Facebook group accountable. “CBP staff have suggested that the agency will not produce any documents while internal disciplinary investigations are ongoing,” Cummings wrote in a September 2019 letter. “As my staff has repeatedly explained, the existence of internal investigations does not relieve CBP of its responsibility to comply with legitimate document requests from the Committee — especially when Members of this Committee were the targets of these attacks.”
In February, Maloney followed up with a letter to CBP demanding that the agency stop obstructing the investigation into the Facebook group. The letter followed a story in the Washington Examiner reporting that senior CBP officials disregarded an internal review board recommendation that four employees be fired for their involvement in the group, and a call in which CBP officials reportedly told committee staffers that the agency had collected documents responsive to the committee’s requests, but “refused to say if or when those materials would be produced.”
“To date, CBP has not produced any information regarding a single employee who was involved in the secret Facebook groups and has not made a single witness available for a transcribed interview. This stonewalling is unacceptable,” Maloney wrote in her letter to Morgan, the top CBP official. “The Committee now insists on full compliance with all of its previous requests, or we will be forced to consider compulsory process.”
Six months after the letter was sent, the Los Angeles Times revealed that CBP had fired four employees after an internal investigation that examined the activity of 138 individuals. The identities of the fired individuals and which posts they were responsible for was not disclosed at the time, though ProPublica later reported that one of the agents was Waldemar Ortiz, a former U.S. Marine based out of Deming, New Mexico. Ortiz was among the agents The Intercept identified in 2019 as having shared posts that advocated locking migrants in shipping containers. On his personal page, the agent tagged photos of himself in uniform with the words “fuckmuslims” and “fuckislam” and shared posts claiming that Rep. Ilhan Omar is a terrorist.
In July, Maloney’s office published a document showing that senior CBP officials “negotiated deals to lessen discipline against employees who engaged in misconduct in secret Facebook groups,” including, in one case, overturning an agent’s recommended dismissal in favor of a seven-day suspension. Redactions in the document made it impossible for the committee to determine both the identity of the senior official and the agent in question.
In an interview Friday, a Border Patrol agent working on the U.S.-Mexico divide, who spoke on condition of anonymity to protect against retaliation, said he wondered whether the subpoena would carry enough force to make any difference. “If they can get away with it, they are going to get away with it,” he said. “Unless there’s a regulation, there’s legislation that forces these folks to cough up information, they’re not going to willfully give up any information at any cost.”
“It seems really hard for justice to prevail in modern times,” the agent added. “The only thing I can say is the obvious — what are they hiding?”