Operation Gatekeeper: An Investigation Into Allegations of Fraud and Misconduct (July, 1998) Office of the Inspector General Department of Justice

III. The OIG Investigation

On July 8, 1996, at the request of then Deputy Attorney General Jamie Gorelick, the OIG assumed lead responsibility over the investigation of alleged fraud relating to Operation Gatekeeper. On August 28, 1996, at Congressman Elton Gallegly's request, the OIG also assumed responsibility for investigating the Union's claim that the Congressional Task Force had been deceived when it visited the San Diego Sector in April 1995.

The OIG thus undertook a two-fold mission: (1) to determine whether Border Patrol supervisors in the San Diego Sector had ordered agents to falsify apprehension reports or other data, or deployed agents in a manner designed to prevent them from apprehending aliens; and (2) to determine whether the INS and/or Border Patrol personnel had intentionally deceived the Congressional Task Force during its April 1995 visit to the Sector.

A. Procedures

By early August 1996, the OIG had assembled a large team of investigators in San Diego. The team consisted of a supervisory OIG agent; a supervisory INS agent from the Intelligence Section at the INS Headquarters; five OIG line agents; three OIA agents; two computer specialists; an OIG auditor; an OIG investigative assistant; and an INS secretary detailed from the Western Region. Later, two additional OIG agents, two additional OIA agents, and two computer specialists joined the team.⁴⁰   The team was led by a Special Investigative Counsel who is an Assistant United States Attorney in Washington, D.C., and who was detailed to the OIG for this investigation.

One of the investigative team's first priorities was to learn how statistical information was gathered and reported in the San Diego Sector. To this end the team began interviewing witnesses at the station and sector level about the procedures they used. We learned that each station and each station component employs unique procedures for each reporting task. As our investigation continued, we interviewed 16 witnesses about how various components in the Sector gather and report information. We interviewed personnel at each station within the Sector, at Sector Intelligence, at Sector Communications, at the Electronic Shop (the unit responsible for planting and maintaining sensors), at the outside contractor responsible for managing the ICAD database,⁴¹ and at the Sector Data Section.

In addition, the OIG conducted 364 substantive interviews of 337 witnesses regarding the allegations of fraud in Operation Gatekeeper. These interviews were conducted under oath; witnesses included the Attorney General, a former Deputy Attorney General and a former acting Deputy Attorney General, Commissioner Meissner, and the Congressmen who participated in the April 8, 1995, visit to the San Diego Sector.⁴²

The vague and general nature of the Union's fraud allegations presented an investigative challenge. Except for the allegations concerning the Congressional Task Force visit, no specific dates on which misconduct allegedly occurred were provided. Given that Operation Gatekeeper had been in effect for approximately two years before any allegations of misconduct arose, the absence of dates made our task significantly more difficult. The Union also did not identify any eyewitnesses to the alleged misconduct, failed - in most instances - to specify at which station the alleged misconduct took place, did not identify any perpetrators of misconduct by name (other than CPA Williams), and did not provide any documentation concerning its allegations. Consequently, one of the OIG's first priorities was to identify witnesses who could provide relevant information concerning the fraud allegations.

Approximately 2,000 Border Patrol agents are assigned to the San Diego Sector, and the OIG had no idea which agents had provided relevant information to Union officials. Union officials who possessed that information refused to cooperate with the OIG. Accordingly, the OIG developed a strategy designed to identify individuals most likely to possess relevant information. The OIG used five basic criteria for identifying such witnesses: station; function; position; allegation; and management position.

Station

We interviewed a broad range of personnel at each Sector station, including agents assigned to the following units: Sector Intelligence, Dispatch-Communications, Transportation, Garage, Alien Detention and Removal Branch, Sector Electronics, and the Public Information Office. The more allegations the OIG received from witnesses we interviewed regarding a particular station, the more station personnel we interviewed.

Function

The fraud allegations we investigated tended to relate to particular personnel at the stations, including collateral intelligence officers, scope operators, sensor coordinators, and drag road operators. The OIG interviewed personnel at each station who held these posts, as well as other witnesses who had held these positions earlier in Operation Gatekeeper. At some stations the same agent was regularly assigned to these duties, while at others the personnel who filled these roles changed frequently. Where a particular agent had held a relevant post for a long time period, we sought to interview that person. Where personnel rotated frequently, we sought to interview a representative sample of such persons.

Position

Given the claims that supervisors were ordering line agents to falsify records and not to apprehend aliens, it was essential for the OIG to interview personnel at every level in the Sector hierarchy. Accordingly, in addition to line agents, we interviewed first-line supervisors and Field Operations Supervisors (FOSs); the Assistant Patrol Agent-in-Charge (APAIC) and the Patrol Agent-in-Charge (PAIC) at each station; all Assistant Chief Patrol Agents (ACPAs) who had oversight responsibility for line stations, Sector Intelligence, or Operation Gatekeeper; the Deputy Chief Patrol Agent; and the Chief Patrol Agent. Because some of these critical positions were held by different people during the relevant two-year time frame, we sometimes interviewed multiple individuals who had held a particular post during Operation Gatekeeper. For example, we interviewed Gus de la Viņa, who was the Chief Patrol Agent when Operation Gatekeeper was initiated (and at the time of his interview was Western Region Director); William Veal, who was the Deputy Chief Patrol Agent under de la Viņa (and at the time of his interview was Chief Patrol Agent in El Paso); Ray Ortega, who was previously the APAIC at Imperial Beach, the PAIC at Chula Vista, and then ACPA (and was Deputy Chief Patrol Agent in El Centro at the time of his interview); and others who had once but were no longer serving in relevant positions.

Allegation

We interviewed every individual who we learned had either publicly or privately made an allegation of fraud concerning Operation Gatekeeper, beginning with witnesses who had voluntarily met with OIA.   In these interviews, we often obtained names of agents who had complained about a Border Patrol policy or practice, or who were likely to have information about a particular incident. We sought to interview each such agent, regardless of whether they had left the San Diego Sector or the Border Patrol.

Of the 167 agents we interviewed, very few claimed to have first-hand knowledge of fraudulent conduct. Throughout our interviews, we kept encountering the same few names of individuals with purported knowledge of fraud.

We also interviewed all supervisors - 10 in total - who were alleged to have engaged in specific acts of fraud. These supervisors were read their rights before we began their interviews. None hesitated to speak with the OIG, and each cooperated fully with the OIG investigation. As described in the next section of this report, the supervisors' cooperation with our investigation stands in sharp contrast to the conduct of the Union officials who originally brought the allegations.

Management position

In addition to San Diego Sector employees, the OIG interviewed the primary decision-makers for Operation Gatekeeper, including Attorney General Janet Reno, former Deputy Attorney General Jamie Gorelick, former Acting Deputy Attorney General Seth Waxman, INS Commissioner Doris Meissner, Associate INS Commissioner Robert Bach (Office of Policy and Planning), Associate INS Commissioner Douglas Kruhm (Border Patrol), and the U.S. Attorney for the Southern District of California (and Southwest Border Coordinator) Alan Bersin. Each of these individuals was interviewed at length and under oath. We also interviewed (1) members of the Deputy Attorney General's staff who had responsibility for immigration issues and who coordinated immigration initiatives with the INS; (2) staff in the INS and Border Patrol Headquarters Intelligence Units who had significant reporting responsibilities regarding the San Diego Sector; (3) individuals who had served in the Justice Department's Office of Public Affairs and who had significant responsibility for dealing with the media regarding Operation Gatekeeper; and (4) the INS Western Region Intelligence personnel. We received exceptional cooperation from all of these witnesses.

Document requests and on-site visits

Because many of the fraud claims involved falsification of reports and other documents, the OIG sought to obtain as much relevant documentation as possible. To that end, the OIG issued two comprehensive document requests to the INS, one covering Operation Gatekeeper generally and another which dealt with the Congressional Delegation's visit.⁴³  After issuing these requests, the OIG met with then INS Deputy Commissioner Chris Sale and six other high-level INS managers to review the requests and resolve any concerns raised by the INS.

The INS gave our document requests wide dissemination, and instructed its employees to produce all responsive documents in their possession. CPA Williams ordered all Sector managers to attend a meeting led by DCPA Beasley to discuss the requests and appropriate procedures. The OIG worked closely with Sector counsel to ensure that the requests were appropriately disseminated and responded to. The document requests were discussed or read at musters at all Border Patrol stations in the San Diego Sector and posted on station bulletin boards. Copies of the document requests were also given to each station supervisor.

During the document production process, we received inquiries from the INS that demonstrated a sincere effort to cooperate fully with our requests. Ultimately, the agency produced more than 100,000 pages of material. The OIG reviewed these materials, and relevant documents were numbered, coded, and entered into a document database.

Although each Union official - as a Border Patrol employee - was required to produce any documents responsive to our document requests, the OIG wished to avoid any possible claim, however unwarranted, that responsive documents in the possession of Union officials were Union rather than INS documents. Accordingly, the OIG issued a subpoena to the Union and its officials that required production of any document that purportedly contained falsified or fraudulent information or that provided the basis for any of the allegations made by the Union officials.⁴⁴  The Union provided no documents in response to this subpoena.

In addition to materials provided in response to its document requests, the OIG requested and received numerous specific documents, including: (1) daily Gatekeeper reports for particular time periods (to determine whether certain negative material had been omitted); (2) transportation logs for significant dates (to compare to reported apprehension numbers to determine whether the number of persons transported to a port of entry exceeded the number of persons reported as apprehended); (3) assignment logs (to determine whether particular individuals were working on the dates of specific allegations); (4) personnel files (to determine whether key witnesses had been the subject of prior disciplinary action); (5) draft versions of selected reports (to determine what editing changes were made); and (6) apprehension logs. The OIG also reviewed and copied all relevant documents from the Deputy Attorney General's staff files regarding Operation Gatekeeper. Finally, the OIG conducted computer searches for all relevant media reports about Operation Gatekeeper to determine what was said publicly about Gatekeeper's results and whether (1) these reports were consistent with actual results and (2) if not, whether this was due to misinformation disseminated by the INS or the Border Patrol or due to media error.

Altogether, the OIG entered more than 67,000 pages of documents into its database. The OIG also obtained and reviewed more than 100 videotapes of news broadcasts regarding Operation Gatekeeper, INS and Border Patrol Public Affairs promotional videos, videos of operations, and videos of speeches by INS and Border Patrol personnel regarding Operation Gatekeeper.

Because the OIG received a specific allegation that the computers in the Sector Intelligence Unit contained copies of fraudulent reports, the OIG accessed all of the computers and loose diskettes in the Sector Intelligence Unit and downloaded more than 8,000 computer files. These files were then reviewed for relevant information.

To facilitate our access to raw data, the INS created a computer link to the computer used by the OIA analyst on the team. Through this link, the OIG had direct access to sensor data, IDENT records,⁴⁵ and apprehension data as needed.

To better understand Border Patrol operations, the OIG team members participated in several tours of border operations. In the fall of 1996, the Special Investigative Counsel directing the team toured Imperial Beach, Chula Vista, Brown Field, El Cajon, and Campo stations, and observed apprehensions, processing, scope operations, and checkpoint operations on Highway 94 and I-8.

After Bonner suggested that these Border Patrol tours were unlikely to reveal the "real" border, the OIG asked him to arrange a Union-sponsored tour in which Union officials would make certain that we observed any aspects of operations that they believed we should see. A Union-sponsored tour of Campo station followed, which was attended by the Special Investigative Counsel and the team's two supervisory agents. In addition to touring operations, team members spent significant time talking informally to Campo agents.

More recently, the Special Investigative Counsel has returned to Imperial Beach, Chula Vista, and Brown Field for tours of particular sites that were of significance to the allegations. Other members of the investigative team have observed operations at the checkpoint stations - San Clemente and Temecula - have observed the use of ICAD⁴⁶ and IDENT, and taken separate tours of border operations. Finally, during the drafting of this report the Inspector General toured Imperial Beach, Chula Vista, and Campo Stations.

B. The role of the Border Patrol Union in the OIG investigation

Because Union officials played a central role in making and publicizing the allegations addressed here, the degree to which the Union cooperated with the OIG's investigation is a critical issue.

When OIA sought to interview Bonner shortly after he first made his public allegations, he refused to identify any witnesses who could substantiate his claims. He also demanded that OIA grant immunity to any line agents it interviewed, and allow a Union representative to be present during interviews. After OIA refused to agree to Bonner's terms, he told its personnel he had nothing further to say and that they know how to compel testimony. He refused to participate in any further interviews with that office. He also began taking the position that an "independent counsel" should be appointed because the investigation needed to be conducted by some agency that had no relation to the Department of Justice, which he claimed "appears to have played at least some role in this widespread attempt to deceive the citizens of this great nation." Bonner offered no support for his claim of DOJ complicity in the alleged behavior.

When the OIG began its investigation in late July 1996, it made extensive efforts to interview Bonner, leaving messages at his Border Patrol Station, Union headquarters, his home, his pager, and his fax machine. Bonner initially did not return these calls. He did, however, testify before the Congressional Subcommittee that "some of the investigative techniques utilized by [the OIG] leave much to be desired." Specifically, he claimed that despite "numerous offers of information" from rank and file employees in the San Diego Sector, the OIG was "currently limiting [its] interviews to the managers accused of orchestrating the deception." In fact, the OIG team had not yet interviewed anyone about the allegations; its only interviews to that point were limited to the mechanics of the Border Patrol data gathering process. Nor had it received any offers of information from Border Patrol agents, including Bonner. Bonner finally came to the OIG's office on August 15, but claimed he was present solely as Union President to negotiate the conditions under which Border Patrol Agents would be interviewed by the OIG. Although he was informed that he had been invited only as a Border Patrol employee who had material information regarding an OIG investigation, and that, because the OIG was not part of management, it had no duty to negotiate with him,⁴⁷ he refused to be sworn or to provide specific information about the allegations, including the identity of the individuals from whom he had received the information. He avowed that, unless agents were granted blanket administrative immunity and absolute confidentiality, he would tell them not to cooperate with the OIG. Told that instructing witnesses not to cooperate with an investigation might constitute obstruction of justice, he said he would remain neutral but he would not encourage Union members to cooperate.

In the days that followed, seven witnesses refused to be interviewed by the OIG. Four were Union officials.⁴⁸  The other three indicated that they had decided not to be interviewed after consulting with the Union. The OIG also began to hear that misinformation about its investigation was circulating among the line agents. In response, the OIG decided to address musters⁴⁹ at several of the largest stations in the San Diego Sector in an effort to correct any misunderstandings, answer any questions the agents might have about the investigation, and to distribute a memorandum from the Inspector General that addressed a variety of the concerns raised by the agents.⁵⁰

In the memorandum and at the musters, the OIG explained that its investigation concerned alleged wrongdoing by supervisors and that it was not seeking to punish employees who had merely followed orders. In response to questions regarding confidentiality concerns, the OIG also assured the agents that, although INS employees had been assigned to the inquiry, those individuals reported to the OIG for the purposes of this investigation, and had been instructed that any disclosures to anyone else at the INS (including their INS supervisors) would subject them to discipline and immediate removal from the team. The OIG noted that no one at the INS, including the Commissioner, would be briefed on the progress of the investigation. The only circumstance under which confidentiality could not be guaranteed was if a person was disciplined based on another's testimony; then, the person being disciplined would have a right to know the identity of the witnesses against him and the content of their testimony.

The OIG explained that it would not permit Union representatives to be present during interviews for several reasons. First, the OIG could not guarantee the confidentiality of interviews if Union representatives were present. Unlike attorneys bound by ethical constraints, those representatives have no duty to maintain confidentiality and indeed have a duty to share relevant information with the Union and other members. Because Union officials played a prominent role in leveling the allegations being investigated, the loyalties of a Union representative could be in conflict. The OIG also explained that many of the Union representatives were themselves witnesses who would be called to testify. Finally, the OIG noted that agents have no legal right to have Union representatives present during its interviews, because the bargaining agreement does not cover these interviews⁵¹ and, in any event, that right attaches only where an individual is likely to be disciplined as a result of the interview, which was not the case here. The agents, however, were also told that if they wished, they could bring a personal attorney to an interview.

The OIG told the agents that it had no intention of granting interviewees the blanket immunity demanded by the Union. Immunity from criminal prosecution was neither needed by every agent, nor warranted in the absence of a more particularized showing that an agent's testimony was valuable enough to warrant such a measure. Moreover, agents have no right, constitutional or otherwise, to withhold information merely because it could subject them to disciplinary action. The OIG did reassure the agents, however, that individual requests for immunity would be considered and decided on their individual merits.

After these muster visits, a substantial number of agents and other Border Patrol personnel cooperated fully. Seventeen individuals, however, refused to be interviewed. Of these, 11 are or were Union officials. Four of these individuals had spoken out publicly, either in the media or in public hearings, regarding alleged Gatekeeper improprieties. Several of the others specifically mentioned that they had decided not to cooperate with the OIG after they spoke to the Union. One witness informed the OIG that someone in this group had told him that "the Union won't let me talk to OIG." The OIG made one last effort to obtain the testimony of 15 agents whose testimony it deemed essential. This effort included a letter from the Inspector General, sent on November 21, 1996, urging them to cooperate.⁵²  No one responded to these letters.

At the OIG's request, the INS began serving notices compelling these individuals to appear at the OIG Task Force offices "to answer questions concerning allegations regarding the administration of Operation Gatekeeper and facts related to the April 8, 1995, visit to San Diego of a Congressional Task Force on Immigration Reform."⁵³  The notices advised that a willful refusal to appear as directed "may be construed to be insubordination, which of itself could result in revocation of any security clearance [they] may hold and the institution of disciplinary action against [them], up to and including dismissal from the Service."⁵⁴

On December 4, the day before the first interview was due to begin, the OIG received a call from an attorney (hereafter, Union counsel) who claimed to represent seven of the persons who had been served notices to appear. He declared that the INS lacked the authority to compel its employees to talk to the OIG, and that his clients would not answer the OIG's questions. He was informed that the OIG would need to hear those representations directly from his clients. On December 5, Union counsel appeared with the first witness, a former Union official,⁵⁵ and another Union official. The OIG declined the witness' request to have a Union representative present; the Union official thereupon left.

The OIG Special Investigative Counsel (OIG Counsel) proceeded to advise the witness of his rights and the possible consequences of any failure to comply with the notice to compel. But when the OIG Counsel asked the witness to sign a form acknowledging that he had been read his rights and understood them, Union counsel ordered him not to sign. The OIG then informed the witness that, although it would permit him to have counsel present, it objected to this particular counsel, because he had a conflict of interest arising from his representation of numerous witnesses in the same investigation - including individuals whose actions and statements this witness would be questioned about - and the Union itself. Union counsel denied the existence of any such conflict. Union counsel then declared he had an appointment elsewhere at that moment. The OIG agreed to a three-hour break. Two hours later, however, Union counsel called saying he had become ill. The interview was rescheduled for the next morning, December 6. The next morning, Union counsel again said he was ill, and the interview was put off until December 9.

On December 9 the witness and Union counsel appeared. Because of the importance of obtaining this witness's testimony, the OIG decided to proceed notwithstanding the apparent conflict of interest, based on the witness's apparent waiver of the conflict.⁵⁶ When the OIG sought to put the witness under oath - as it did when conducting all the interviews in this investigation - Union counsel instructed the witness not to take an oath because he was not required to do so. Because the OIG was unwilling to take unsworn testimony and the impasse could not be resolved, the interview was adjourned without the witness giving any testimony.

A second witness, scheduled to be interviewed on the afternoon of December 9, appeared with the same Union counsel but declared that he had not been served with the notice to appear until late on the previous Friday and therefore had not had time to consult with counsel. The interview was continued until December 16 to permit the witness to consult with Union counsel. The OIG learned subsequently that the witness had misrepresented the facts and had actually been served on the previous Thursday.

A third witness appeared on December 10 with two lawyers - the Union counsel who had appeared on behalf of the other witnesses, and a second counsel secured by the first - and a Union representative, who happened to be one of the other witnesses who was to be served with a notice to appear as well. Relying on a controlling decision by the D.C. Circuit Court of Appeals,⁵⁷ the OIG required the Union representative to leave the room. This witness, too, refused to be sworn, but he indicated that if the INS ordered him to answer questions under oath, he would do so. The OIG was unable to contact the compelling official, but other officials at the INS declared that the agency had presumed that the interviews would be under oath and that the witness's failure to answer questions under oath constituted a willful violation of the notice to appear. The witness was informed of the INS's position but remained unwilling to answer questions under oath. The interview was adjourned until December 12, but the INS immediately issued a clarifying order - which was served on other witnesses as well - stating that its initial order to appear had meant that if the OIG felt it was necessary to conduct interviews under oath, then the witness must answer questions under oath. The witness reappeared on December 12 with Union counsel. Although Union counsel complained that, because the clarifying notice had not been served 48 hours before, the witness was being denied his right to representation, the interview proceeded.⁵⁸  Of eight interviews initially scheduled up to this date, this was the only one completed.

Although four other witnesses were interviewed on December 12 and 13, scheduling conflicts precluded the scheduling of more interviews until January 6, 1997. On December 24, however, the OIG was served with a copy of a request from the American Federation of Government Employees (AFGE)⁵⁹ and the NBPC to the Federal Labor Relations Authority (FLRA) to issue a complaint of an unfair labor practice against the OIG and the INS and to petition a district court for a temporary restraining order against the OIG pursuant to 5 U.S.C. § 7123(d). The requested order would have enjoined the OIG from interviewing Border Patrol personnel in the San Diego Sector without permitting Union representatives to attend the interviews, and would have precluded the OIG from asking witnesses who were Union officials or representatives about information they had received from Border Patrol personnel regarding alleged fraud in the conduct of Operation Gatekeeper. Such an order would have permitted Union officials to learn whether particular witnesses had supported or contradicted the Union's allegations or had accused any Union members or officials of any wrongdoing. The order would have effectively prevented the OIG from investigating whether the Union had obstructed justice by affirmatively urging witnesses not to cooperate with the OIG investigation. The order would also have shielded any Union official who had made allegations in the press or in public hearings from having to substantiate any of his allegations.

On January 10, 1997, the same day the OIG filed its response with the FLRA, the Inspector General and the OIG's General Counsel met with FLRA Deputy General Counsel, AFGE Assistant General Counsel, and Bonner, and a settlement was reached among the OIG, AFGE, and the NBPC.⁶⁰  Under this agreement, the OIG agreed that the bargaining unit members of the San Diego Sector Border Patrol were not the subject of the Operation Gatekeeper investigation. The OIG also agreed that these individuals would upon request be granted confidential informant (CI) status. Information provided by an employee with CI status would not be used in any criminal prosecution of the employee, except as to any perjury committed after the granting of CI status. All employees granted CI status would be identified by the OIG by control number only and the OIG could not divulge the identity of the employee except pursuant to court order or the written consent of the CI status employee. ⁶¹   The OIG also agreed that Union officials or representatives could have legal counsel in their interviews.

For its part, the Union agreed to encourage bargaining unit employees to come forward and to cooperate with the OIG in its investigation. The Union also agreed to seek permission from employees who had given relevant information to the Union to allow the Union to provide the information and the source's identity to the OIG. If the employee granted permission, the Union promised to answer questions as to the substance of that information and the employee's identity. If the employee did not grant such permission, the Union was still obliged to provide the substance of what the employee had said, but could protect the employee's identity. The Union also agreed to withdraw its unfair labor charge against the OIG and the INS. Finally, the Union withdrew its demand to have Union representatives present during the interviews.

On January 22, 1997, the OIG resumed the interviewing of witnesses it had earlier sought to compel to testify. In the end 27 witnesses were granted CI status. All of the individuals the OIG had determined essential to interview but who had initially declined were eventually interviewed pursuant to the agreement.⁶²

40 Because the OIG had lead responsibility for the investigation and preparation of this report, we use the term "the OIG" in referring to the investigative team. This designation is not intended to denigrate in any way the contribution made by INS team members, each of whom was an integral part of the investigative team and participated fully in drafting and executing the investigative plan, in interviewing witnesses, in reviewing documents, and in all other aspects of the investigation. INS personnel played an important role in the investigation, and the OIG appreciates their substantial contributions to it.

41 The ICAD system records, inter alia, information regarding when sensors are triggered by movement and the results of any response to the sensor such as whether undocumented alien traffic was located and apprehended.

42 Twenty-three of the interviews were audio-taped; complete transcriptions of five interviews were also prepared.

43 Copies of the document requests are contained in the Appendix to this report at
A-49.

44 A copy of the OIG's subpoena to the Union and the Union's response are contained in the Appendix to this report at A-53.

45 IDENT is the computerized fingerprint and photograph identification system. In addition to identifying information, these records indicate the date and time each alien is entered into the system.

46 ICAD (the Intelligent Computer Assisted Detection System) records sensor information.

47 See Dept. of Justice v. Fed. Labor Rel. Auth., 39 F.3d 361 (D.C. Cir. 1994), rehg. denied (1995).

48 For the purposes of this report the term "Union official" refers to any individual holding a position within the Union hierarchy, including stewards, representatives, and officers.

49 "Musters" are the gatherings of the agents immediately before they go out into the field. They are used to take roll call, announce assignments, give instructions regarding new tactics or equipment, and make any other announcements the supervisors deem appropriate.

50 A copy of this memorandum is contained in the Appendix to this report at A-56.

51 See Dept. of Justice v. Fed. Labor Rel. Auth., supra, 39 F.3d at 361. The only other Circuit to consider the application of these rules to DOJ OIG held that the rules do not apply when the OIG interviews concern conduct that is not the subject of the bargaining agreement. See Fed. Labor Rel. Auth. v. Dept. of Justice, 125 F.3d 106 (2d Cir. 1997); modified on pet. for rehg, 137 F.3d 683 (2d Cir. 1998); Cf. Crim. Inv. Service v. Fed. Labor Rel. Auth., 855 F.2d 93 (3rd Cir. 1988) (Defense Criminal Investigative Services investigator a representative of the agency such that an employee was entitled to have a union representative present during an interview); Fed. Labor Rel. Auth. v. NASA, 120 F.3d 1208 (11th Cir. 1997) (NASA OIG investigator a representative of agency so employee entitled to union representation).

52 A sample of these letters is contained in the Appendix to this report at A-58.

53 One of these individuals was no longer employed by the Border Patrol or INS so he could not be compelled. He was, however, subsequently convinced to cooperate under the terms of the Confidential Informant agreement reached between the OIG and the NBPC. Another individual had been interviewed voluntarily but had declined to identify the alleged perpetrators of wrongdoing that he had described in his interview. He was compelled solely to provide the essential details regarding his allegations.

54 A sample of these notices is contained in the Appendix to this report at A-59.

55 Although the individual was not a Union official at the time of the interview because he had been promoted to a supervisory position, the Union apparently elected to represent him because the OIG's questions would cover his actions and knowledge of events while he was an official.

56 The OIG advised each of the subsequent witnesses represented by this counsel of the apparent conflict of interest. Although the OIG asked each to explicitly waive the conflict of interest, Union counsel repeatedly instructed the witness not to respond to the OIG's question as to whether the witness was waiving the conflict. But since the OIG thoroughly reviewed the conflict and its possible consequences with each witness, and each indicated his wish to proceed with this counsel, the OIG interpreted this as a knowing waiver of the conflict.

57 Dept. of Justice v. Fed. Labor Rel. Auth., 39 F.3d 361 (D.C.Cir. 1994).

58 Under the Union contract when a person covered by the contract is required to be interviewed, he is entitled up to 48 hours to secure union representation. Although not bound by the contract, the OIG sought to have the witnesses served at least 48 hours, and if possible even longer, before the scheduled interview.

59 AFGE is the parent union organization for the NBPC.

60 A copy of the agreement is contained in the Appendix to this report at A-60.

61 The agreement was not retroactive. Any individuals who had previously testified in the investigation were not affected by the agreement as to their previous testimony. They could, however, request CI status for any additional or different information they provided subsequent to the agreement.

62 The OIG sought permission from several of these witnesses to indicate that they eventually cooperated with the OIG. Each of these individuals refused the OIG's request.

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Operation Gatekeeper: An Investigation Into Allegations of Fraud and Misconduct (July, 1998) Office of the Inspector General Department of Justice