NEWLY RELEASED FOIA DOCUMENTS SHED LIGHT ON BORDER PATROL’S SEEMINGLY LIMITLESS AUTHORITY – Max Rivlin-Nadler January 7 2019, 9:05 a.m.


U.S. Customs and Border Protection agents take part in a training exercise at the U.S.-Mexico border on Nov. 5, 2018, in Hidalgo, Texas. Photo: John Moore/Getty Images

Documents Shed Light on Border Patrol’s Expansive Authority

These details and others were revealed in more than 1,000 pages of previously unseen Customs and Border Protection training documents, which were obtained by the American Civil Liberties Union after a four-year legal battle and shared exclusively with The Intercept. The documents were finally released to the ACLU’s Border Litigation Project this past August in response to a 2014 Freedom of Information Act request that focused on the policies of Border Patrol’s “roving patrols” — units that operate outside of ports of entry and checkpoints, often venturing far into the country’s interior. These roving patrols can question, detain, and arrest individuals they suspect of having illegally crossed the border or having smuggled drugs or other contraband into the country.

During the course of the FOIA litigation, CBP argued that releasing the documents would be a violation of attorney-client privilege between CBP’s legal branch and its officers in the field. A federal judge dismissed that claim last year, after finding that the Enforcement Law Course did not contain confidential information flowing from client to attorney. Despite this finding, parts of the course, including the entire section related to the use of surveillance, have been redacted. A judge also allowed a chapter on instructions regarding courtroom testimony to be redacted, finding that it conveyed litigation strategy.

What’s included in the documents, however, is a portrait of an agency that acknowledges that citizens and noncitizens alike are covered by the Fourth Amendment, which protects against unreasonable searches and seizures, while also instructing officers on expansive ways to circumvent it.

“One thing the documents that we obtained do a good job of highlighting is how arbitrary and often nonsensical the agency’s decision about whether something rises to reasonable suspicion to justify a stop is,” said Mitra Ebadolahi, an attorney with the Border Litigation Project who litigated the FOIA request.

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