The Gang of 8 and Accountable Border Enforcement

Accountability is the key to reform: accountability to the American public in setting and meeting a strict standard for border security, accountability to border residents on how the law is enforced in their communities, and accountability to the highest law enforcement standards.
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The Border Patrol has long lived a charmed existence. For years, its only publicly-reported measure of success has been "apprehensions," a flexible tool used to tout its success in years of high and low apprehensions. Meanwhile, Congress has contented itself with setting only symbolic standards for border security (no illegal entries) and has never tied border enforcement funding to meeting meaningful performance standards. Furious at illegal migration and yet oddly forgiving of the guardians of our borders, it has steadily increased Border Patrol funding and staffing, regularly exceeding budget requests and providing more agents in many years than the Border Patrol could reasonably accommodate.

As a result, border residents increasingly seethe at a level of government intrusion into their daily lives that would be unconscionable and unconstitutional elsewhere in the country. In addition, a steady stream of reports by academics, researchers and border groups has documented rampant human rights violations by Border Patrol agents. Of course, the great majority of agents do their difficult, dangerous and often tedious jobs with great professionalism, even in the face of provocation. Yet many do not and face no apparent consequences for it.

Twenty percent of 300 El Salvadorean deportees interviewed in 2002, for example, reported being shoved, thrown to the ground, hit, kicked, slapped or otherwise abused during their arrests. Twenty-five percent said that agents directed racial slurs at them. In another survey -- involving 1,113 deportees interviewed in Mexico between 2010 and 2012 -- 11 percent reported physical abuse by U.S. authorities, 23 percent reported verbal abuse, and 39 percent said their valuables had been confiscated and not returned, including identification cards, money and cell phones. In a 2012 survey of 4,963 Mexican and Central American migrants (primarily deportees), 5.6 percent reported physical abuse, 13.4 percent verbal abuse, and 58 percent of those travelling with others reported being separated from family members during deportation. Another report based on 4,130 interviews with 12,895 deportees between 2008 and 2011 found physical abuse in 10 percent of the cases, extensive verbal abuse, failure to return personal belongings and family separation during deportation. Several reports and legal complaints have also highlighted the inhumane treatment of migrants -- insufficient food, prolonged exposure to cold temperatures, and undignified conditions -- in Border Patrol holding cells.

Perpetuating these problems are the Department of Homeland Security's (DHS's) complaint and investigation processes, which are so confusing and dysfunctional that DHS officials often advise persons to file complaints with multiple DHS offices and even with foreign officials in order to increase the odds of an acceptable response.

The Border Security, Economic Opportunity, and Immigration Modernization Act (the Gang of 8 bill) attempts to address many of these problems. It would create a rigorous, outcome-based standard for border security: a 90 percent "effectiveness" rate (akin to an apprehension rate) in heavily-trafficked border sectors. It would also:

•require DHS to issue a use-of-force policy and establish procedures for accepting and investigating use-of-force complaints;
•increase training of border officers on civil and human rights issues;
•extend the authority of the DHS ombudsman to cover the two DHS enforcement agencies; and
•create a DHS task force comprised of border residents and Border Patrol officials to make recommendations on the impact of enforcement policies on border communities.

It is remarkable that these steps were not taken long ago. Still, they would represent very significant reforms. On the other hand, the Gang of 8 would continue the pattern of Border Patrol funding increases, requiring the hiring of another 3,500 agents, whether or not they will be needed to meet the new security standards. Moreover, despite widespread concerns over perceived government overreach, the bill would require 24/7, 100 percent surveillance within 100 miles of the U.S.-Mexico border through ground-based surveillance systems, drones, manned aircraft and other means.

The United States has made unprecedented investments in border enforcement over the last two decades. It now needs to invest in creating a humane, rights-respecting enforcement system as well. One way to do so would be to trigger further border enforcement spending increases on meaningful improvement in the Border Patrol's human rights performance. Accountability -- long absent in the U.S. border enforcement system -- is the key to reform: accountability to the American public in setting and meeting a strict standard for border security, accountability to border residents on how the law is enforced in their communities, and accountability to the highest law enforcement standards.

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