The Government Has Been Using the Border as a Dragnet to Pressure People Into Becoming Informants

By Hugh Handeyside, ACLU

20 October 16

ecently leaked documents published by The Intercept show that the FBI and Customs and Border Protection have been using CBP’s authority to search travelers at the border — along with the troves of information collected as a result — to troll for potential sources and pressure people into becoming informants. We’ve gone through the documents, and they heighten our concerns that these agencies are exceeding their authority, targeting minority communities and vulnerable people, and trying to evade accountability for doing so.

These documents also highlight a broader problem with the government’s official guidance on the use of race by federal law enforcement agencies. That guidance purports to ban racial profiling, but it includes exemptions for border screening and national security — exemptions that the leaked documents demonstrate are dangerous and unwise.

The secret documents provide a detailed description of the arrangement between the FBI and CBP. The FBI briefs CBP on intelligence priorities, including countries of interest, and CBP provides the FBI with lists of passengers departing to or arriving from those countries 72 hours beforehand. The agencies then use those passenger lists and FBI databases to “target” or “spot” potential informants among the passengers. When those individuals arrive at the airport, CBP redirects them for secondary inspection — which can mean hours of intrusive questioning and searches — during which CBP officers assess them as possible informants and provide those assessments to the FBI. The FBI then uses the airport search as a “pretext” for a follow-up visit to people at their homes or workplaces, during which agents pressure them to become informants.

Most of the documents date from 2012, and while they don’t include independent confirmation that this program is ongoing, they are consistent with what we hear routinely from members of American Muslim, Arab, and South Asian communities about their treatment by the FBI and CBP.

The documents raise several serious concerns.

An End-Run Around the Fourth Amendment

First, this kind of collusion between the FBI and CBP stretches each agency’s authority to the breaking point. The FBI can’t stop and search or question people without any suspicion of wrongdoing in order to assess whether they can be pressured into serving as informants; doing so would violate the Fourth Amendment. By engineering those stops, searches, and questioning by CBP at the border, the FBI is attempting to circumvent the Constitution.

CBP, for its part, has the authority to stop and search travelers at the border and ports of entry, but only for the purpose of locating contraband or identifying individuals who are inadmissible or engaged in criminal activity — a mandate that CBP recognizes is limited. Instead, CBP is using the border as a dragnet for intelligence gathering on innocent people — or, in the FBI’s words, “[l]ooking for ‘good guys’ not ‘bad guys.’” That appears to be outside CBP’s authority.

The result is that CBP’s searches under the informant-recruitment program are much more intrusive than they would be if they stayed within CBP’s mandate. For instance, the questions CBP asks in trolling for informants are designed, according to the documents, to assess people’s “motivators, personality traits, vices, interests, hobbies, etc.” That’s unduly invasive, and it’s consistent with what we’ve long documented about border questioning of Muslims regarding their religious beliefs and practices — questioning that can infringe on rights guaranteed by the Constitution and federal law.

Racial and Religious Profiling

Second, the documents again show that both the FBI and CBP unfairly and discriminatorily target American Muslim communities for scrutiny and surveillance. One blatant example of that kind of biased targeting is a presentation describing the FBI’s efforts to recruit informants within Yemeni-American communities in Buffalo and Rochester, New York. In singling out those entire communities for “source targeting,” the FBI is treating them as inherently suspicious — a practice that parallels its offensive and discriminatory “racial mapping” program.

Other parts of the documents underscore that the agencies are engaging in what amounts to racial and religious profiling. In describing the program, the first bullet in a CBP presentation states that the agencies are “[n]ot profiling, targeting,” but the very next bullet states that they “can target on a number of factors, including . . . name origin.” That’s essentially a proxy for ethnicity, and in many cases, religion. Another document directs CBP officers to assess travelers’ potential value as informants by asking them about their “tribal/clan affiliation,” again suggesting that CBP and the FBI are targeting those travelers for additional questioning and scrutiny based on their race or ethnicity.

Taking Advantage of Innocent People

Finally, the documents offer a disturbing window on how the FBI and CBP prey on people in vulnerable positions while concealing the true nature of the informant-recruitment program. The border can be an inherently coercive environment, and people transiting the border — including U.S. citizens — may feel compelled to answer whatever questions CBP officers ask them, even if they are deeply personal or irrelevant to CBP’s border-security mandate (more on your rights at airports and ports of entry here). The FBI and CBP are leveraging that dynamic in order to single out, search, and question people who, again, the agencies acknowledge have done nothing wrong.

Immigrants are particularly vulnerable to this kind of coercion, which the agencies purposely exploit. The documents instruct officers to use an “immigration relief dangle” — i.e., an offer to assist in securing immigration relief if the individual serves as an informant. That raises serious legal and constitutional concerns, and it is of a piece with a secret program through which the government denies or delays citizenship or lawful permanent residence to thousands of law-abiding people without adequate due process. The FBI and CBP ratchet up the deception by using that “dangle” with people “who will ultimately receive their benefit anyhow,” meaning the offer is an empty promise.

CBP says that its “inspection procedures are designed to facilitate the entry of U.S. citizens and aliens who can readily establish their admissibility.” These documents belie that claim. They also serve as a stark indication of how the FBI and CBP are treating the border as a dragnet to pressure vulnerable people to spy on their neighbors and communities.