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| Operation Gatekeeper: An Investigation Into
Allegations of Fraud and Misconduct |
C. Allegations regarding the misuse of fixed positions
Use of fixed positions in the San Diego Sector increased substantially under Gatekeeper. A strategy of deterrence requires highly visible positions close to the border; the apparent probability of being caught must be great enough to discourage aliens from even attempting to enter. For this reason, fixed positions along the border became the cornerstone of the new program.
These fixed positions were a source of serious conflict between many line agents - who disliked the positions - and managers, who created these positions to implement the new strategy. Agents complained that they were instructed to ignore aliens who crossed through their fixed positions; that they were being reprimanded or disciplined for leaving their positions to apprehend aliens; and that the fixed positions were intentionally placed in low traffic areas to prevent agents from apprehending aliens. We address each of these claims in turn.
1. Allegations that supervisors told agents to ignore aliens crossing through their fixed positions
In a July 7, 1996, Los Angeles Times article, Bonner alleged that agents were being told to "look the other way" when aliens appeared. He testified in both the California Assembly and the Congressional Subcommittee hearings that agents were ordered to "stay in position" while aliens passed their positions. Similarly, No. 1922 told Congress that agents assigned to stationary positions were ordered not to pursue aliens passing by their positions. This agent testified that he had watched "scores" of aliens run by his position, and he has had aliens run over the top of his vehicle. He further stated that illegal aliens "skirt around our stationary positions, and it is easier than ever for them to escape apprehension." Seven other agents - from Imperial Beach, Chula Vista, and Brown Field - also complained that supervisors were telling agents to ignore aliens in their assigned areas.
These were shocking allegations. If supervisors were ordering agents to permit illegal aliens to enter the country, the Gatekeeper strategy was a charade, and its alleged success a chimera.
No. 1922 initially told us that supervisors were ordering agents to ignore aliens on a daily basis. He could not identify any supervisor who had given such an order, however. Moreover, he testified that how agents were told to patrol their area or whether they could move from their area varied from supervisor to supervisor.102 In our second interview of him, this agent admitted that supervisors were not ordering agents to ignore aliens on a daily basis. Although the agent went on to complain about not being allowed to leave his position, he could provide no information indicating that supervisors had ordered agents not to apprehend aliens within their assigned areas. He did tell us, however, that he had frequently chosen not to apprehend aliens:
I want to get promoted and the less work I actually do in catching aliens, the better I am off. You don't get in trouble by not catching aliens. . . . Yeah, by the most part we don't catch aliens. At least I don't. My job is to sit on an X and I sit on the X. If they go around me, if I see them go around me, I let them go. Because my job is not to catch them. I have been told that over and over again. My job is only to prevent. And if they get through, well, I didn't prevent. Oops. Because I've been chastised enough times for going after them and apprehending these guys. . . Unless they come right over the hood of my car, I won't get out of the car. I'm beyond that point. I could give a rat's ass how many of them get away. . . . The less aliens I catch, the better off I am. Time off the line, that's all I care about. I don't care about catching aliens anymore. I just want to get off the line.
Two other Imperial Beach agents claimed that they had been told not to get out of their vehicles to apprehend aliens. The first agent testified that first-line supervisors, FOSs, and the PAIC had all told him to stay in his vehicle. He claimed that on one occasion when he was in his border position, a FOS told him, "Don't work the traffic." He said he interpreted this to mean that he should not apprehend any aliens. The second agent conceded that the order that agents should not get out of their vehicles applied to only a few limited positions (some agents referred to these positions as "hard Xs" because there was not a lot of latitude in how to work them). He also noted he only worked border positions during the first month of Gatekeeper. He subsequently moved to a unit that does not have Xs.
A witness from another station claimed to have heard from Imperial Beach agents that they were told to ignore rather than apprehend aliens. He said he did not know what was actually said to the agents, he did not identify any of his sources, and he could not identify any of the supervisors who allegedly gave such orders.
We received four similar complaints from Chula Vista agents. Two agents testified that when assigned to a fixed position they simply sat in their vehicle and did nothing. One of these agents testified that the Xs were described as "stationary positions," so he assumed he was supposed to just sit in his vehicle. He conceded that for some positions he was aware there was "a zone" to patrol that allowed for some movement. Another agent testified that a supervisor said, "Just work the obvious traffic." He said he interpreted this to mean he should not apprehend aliens.
A Brown Field agent told us that supervisors instructed agents not to pursue aliens who came through their assigned areas because backup units would apprehend them. He claimed, however, that there were no backup units. He said he apprehended aliens who came through his area, but he claimed to know of agents - whose names he said he could not recall - who claimed they had allowed aliens to pass through their positions.
In contrast to these allegations, over 160 other agents we questioned told us that they had never been told to ignore aliens in their area of responsibility and they did not hesitate to apprehend aliens traversing their positions. One Union official from Imperial Beach testified that he had never heard of agents being told to stay in their vehicles when aliens passed by, and he said he believed that this complaint was exaggerated "quite a bit." Other line agents said that several "disgruntled" agents were unhappy about being assigned to fixed positions and intentionally misinterpreted their supervisors' instructions.103
Several supervisors echoed these comments, testifying that they thought that some agents were "disgruntled" about their fixed position assignments, and were retaliating by not moving from their positions at all. All the supervisors we questioned stated that agents assigned to fixed positions were free to move around within their positions.
Several supervisors and line agents explained that agents had to use common sense in deciding when to leave their vehicles. Small groups of aliens often enter one side of an area as a diversionary tactic, while larger groups attempt to slip past on the other side. On other occasions, aliens have distracted agents and gotten them away from their vehicles while other aliens ransacked the agents' vehicles.
A Chula Vista supervisor mentioned an incident involving an agent who repeatedly violated instructions to stay within his assigned area on the airport mesa. After finding him out of position again - this time because he had left to have breakfast - the supervisor drew an "X" in the dirt and ordered the agent to remain on this X. This incident clearly was an isolated case reflecting frustration with a particularly recalcitrant agent; it was not evidence of a station-wide policy.
Overwhelming evidence exists to show that supervisors did not instruct agents to ignore aliens within their assigned positions. Line agents - who attended the same musters as the complainants and heard the same instructions - not only denied that such instructions were given but also attributed these allegations to a few disgruntled individuals.
The credibility of the complaining witnesses was highly suspect. No. 1922's OIG testimony makes clear that he chose not to apprehend aliens because he did not care about doing his job. While he initially told the OIG that unnamed supervisors were ordering agents to ignore aliens on a daily basis, he subsequently conceded that this testimony was inaccurate. He claimed that such instructions continued even after the initiation of the OIG's investigation, yet no one else either called to complain about this alleged instruction or mentioned it in their testimony. During our investigation we received calls from agents and/or Union officials who believed that particular contemporaneous conduct supported allegations of misconduct. The absence of such calls in this instance suggests either that others did not share No. 1922's view of what was said at musters or that the agent's recollection of the statement and its context is inaccurate. As with many other issues he raised, we found No. 1922's testimony on this point to be exaggerated, inaccurate, and demonstrably false. In contrast, a broad range of witnesses - both line agents and supervisors - testified credibly that agents were not ordered to ignore aliens. In sum, we reject as not credible No. 1922's claim that supervisors had ordered him to remain in his vehicle and not apprehend aliens in his immediate vicinity.
None of the other complaining witnesses contended that they had been told directly not to apprehend aliens in their assigned areas. Their claims were based on assumptions about supervisors' intents. Although they allegedly believed that supervisors were ordering them to let aliens enter the country, they apparently never questioned the supervisors about their instructions. Notably, the overwhelming majority of their fellow agents did not share this understanding of their assignments.
We further note that nothing in the written strategic plan for Gatekeeper - which many agents reviewed at the outset of the program - suggested that first tier agents were expected to ignore illegal traffic in their vicinity. To the contrary, the plan explicitly stated that Gatekeeper sought to "control[] the border through a combination of both apprehensions and deterrence." The plan also instructed that "the first tier [of agents] will apprehend some or all of the [alien traffic]," and identified the first tier's duties as "prevention, apprehension, and observation." The plan said that "this tier will work hand in hand with the second tier to ensure a high percentage of apprehensions." Indeed, the plan was premised on the belief that deterrence was achieved when the risk of apprehension was sufficiently high that aliens would not view a successful entry in that location as likely. Ordering first-tier agents to ignore aliens was not a part of or consistent with the strategy of Operation Gatekeeper.
Consistent with the strategic plan, however, supervisors emphasized deterrence as the first line of defense. Agents disliked the deterrence approach because it required them to maintain a fixed position. Agents found these assignments boring, and supervisors had difficulty in motivating agents to focus on deterrence.
Prior to Gatekeeper the goal was to apprehend as many aliens as possible, an objective that all of the agents understood. Setting deterrence goals was more difficult because there is no objective measure of how many aliens were deterred on any given shift. The only proxy for measuring deterrence was a decrease in apprehensions. Accordingly, supervisors on occasion set low apprehension figures as a shift's goal. As we discussed in detail in the previous section, we conclude that these goals were not intended to be quotas or to suggest to agents that they should allow illegal traffic to pass so that the goal could be met. Significantly, the vast majority of agents understood that in setting such goals supervisors were not telling them not to apprehend aliens.
Finally, there is overwhelming evidence that agents were not allowing aliens to enter the United States unimpeded. Imperial Beach's experience is instructive on this point. It is undisputed that Imperial Beach is the entry location of choice for illegal traffic because it offers the easiest and most direct route into the United States. It is also undisputed that aliens would not attempt to cross in the difficult East County area unless the easier, preferred route was no longer available to them. Accordingly, if agents ignored aliens and allowed them to cross unimpeded so as to keep apprehension numbers low, aliens would continue to choose Imperial Beach as their entry location.
Since Gatekeeper began, however, Imperial Beach neighborhoods that were previously characterized by substantial illegal alien traffic have become comparatively quiet. Evidence of alien traffic in these areas has dropped dramatically. In contrast, alien traffic in East County has skyrocketed. This undisputed shift in crossing patterns demonstrates that claims that agents sat by idly while "thousands" of aliens ran over their vehicles and by their positions must be false. Based on all of the evidence discussed above, we reject as unsubstantiated the allegation that agents were ordered to ignore aliens passing their positions.
We do find, however, that supervisors did not do an effective job of communicating to agents what was expected of them in their assigned positions and that some agents may have been confused about their responsibilities and about Gatekeeper's goals. Kruhm, who at the time was Assistant Commissioner for the Border Patrol, testified that although he had never told CPA Williams or anyone else in the Sector not to apprehend aliens, "it would not surprise me" if some first-line supervisors had told agents to stay on their X and not to apprehend aliens passing by. Kruhm said he believed that Gatekeeper was not properly explained to supervisors and that some might have mistakenly instructed agents to remain in place.
We are disturbed that Assistant Commissioner Kruhm apparently realized that there were communication and training problems concerning Gatekeeper but did not take action to solve these problems. Given the magnitude of the operational changes mandated by Gatekeeper, it was obvious that line agents and supervisors needed substantial training concerning the program and their new responsibilities. It was not until October 1996, however - two years into the program - that Imperial Beach Station created a slide presentation explaining how agents should conduct a "zone defense" in their assigned areas. This presentation identified deterrence as the "foremost operational priority" but noted that if aliens did enter, they should "be detected and apprehended as efficiently as possible." It urged agents to become familiar with their assigned area, noting that some zones "require little movement while [in] others [agents] have the latitude to move significantly, depending on alien traffic." The program also explained how front-line agents should communicate with agents assigned to backup or adjacent positions so that they could assist in apprehending traffic or covering an opening created when an agent along the border needed to adjust his position to address traffic pressures. This type of presentation should have been made at the beginning of Gatekeeper, not at its second anniversary.
Clear, written instructions for operational strategy must be developed and distributed prior to significant changes in operations. Furthermore, supervisors must be properly trained in such new programs so that they understand the broader plan and how to communicate it effectively to their subordinates.
2. Allegations that agents were disciplined for leaving their positions to apprehend aliens
In the July 7, 1996, San Diego Union Tribune, Bonner charged that agents assigned to fixed positions were "discouraged, even reprimanded, if they stray to make arrests." Bonner repeated in his Congressional testimony that
agents were encouraged or even ordered to remain in position, even if aliens crossed on either side of their location. Some agents who left their position in order to apprehend illegal aliens were chastised or even threatened with disciplinary action.
Similarly, No. 1922 testified that he was disciplined for leaving his position to chase 35 illegal aliens. He claimed that other agents also had been disciplined for such behavior.
Unlike most of the allegations raised by Bonner and No. 1922, substantial evidence supported their claims that agents had been disciplined or at least admonished for leaving assigned positions along the border. We interviewed 21 individuals who had been admonished for being out of position; 6 had received written reprimands.104 An additional 47 witnesses told us that they had heard about agents who had been admonished or disciplined for being out of position.
While witnesses agreed that some agents have been disciplined for leaving their assigned positions, there was substantial dispute as to why these agents were disciplined. Bonner and No. 1922 complained that these agents were disciplined because they were apprehending aliens and supervisors did not want higher apprehension numbers. Others claimed that these agents were disciplined because they had violated direct orders regarding their assignments.
When we reviewed the occasions when agents were admonished or disciplined for leaving their positions, several patterns emerged. First, none of these agents had advised his superior that he was leaving his position and would need a relief agent. Each agent had been given a specific assignment yet had unilaterally chosen to abandon that assignment to do something else, such as to assist a fellow agent, to conduct an independent investigation, or to obtain food.105
Although agents were free to leave their positions prior to Gatekeeper, the new strategy precluded such independent action. The border positions were designed to deter. If there is no one in a position, there is no deterrence at that location. As many of the witnesses testified, a deterrence strategy cannot succeed without a consistent presence. Thirty-nine witnesses, including twenty line agents, told us that if an agent left his position, aliens would exploit that opening. Smugglers employ scouts who constantly patrol the border to discover such openings. They also use small groups of aliens as decoys. Many witnesses commented that when an agent leaves his position to apprehend a few aliens, large numbers of aliens often will exploit the opening. For example, the OIG interviewed an agent who complained about being disciplined for moving 100 yards away to assist a fellow agent apprehend alien traffic. His supervisor testified, however, that it was the third time that day the agent had been out of position without permission, the agent had been warned previously about leaving his position, and the supervisor had to apprehend some aliens who came through the agent's abandoned position.
The fixed positions were designed for areas that attracted large amounts of illegal traffic. We do not consider it appropriate for an agent assigned to such a position to decide unilaterally to abandon his post to do something else, even if he believes that his desired action is more important. If an agent is correct that another activity is more important than his original assignment, he should seek his supervisor's approval so that the supervisor can make any necessary adjustments along the line. An integrated strategy requires teamwork, and supervisors have the responsibility for calling the plays.106 Although prior to Gatekeeper agents were generally free to go where they wished and to do what they wanted, this led to chaos and explosive growth in illegal traffic. One need only look at the results at Imperial Beach to realize that a coordinated plan founded on deterrence is more productive than allowing agents total autonomy.
Our investigation also revealed that most of the agents who had been reprimanded or disciplined had repeatedly left their positions without permission and had received prior warnings. A number of these agents had a reputation for abandoning their assigned positions for any reason whatsoever. Some were found out of position several times on the same shift. One agent said he left his position on numerous occasions because it was a "challenge" to go after aliens and he thought Gatekeeper was a bad strategy.
We also found that agents were not disciplined for briefly leaving their positions to assist fellow agents. Most agents said that their supervisors allowed them to exercise judgment regarding problems in adjacent areas. If an agent was being overrun, an agent in an adjacent position could leave his position to provide assistance. Agents leaving their positions, however, were expected to arrange for other agents to cover their positions. Agents said that they were told to assist other agents as necessary, but to return to their assigned position as quickly as possible. Generally we found that those agents who left their positions only when a nearby agent needed immediate assistance, and then quickly returned to their position, did not suffer any consequences. Those who left their positions frequently and for long periods of time did not fare so well.107
No. 1922 was the primary complainant regarding alleged discipline for being out of position. In his Congressional testimony he claimed to have been "disciplined" for leaving his position to chase 35 aliens. He offered no evidence to the OIG, however, that he had ever been disciplined. Indeed, he told us that his supervisors would not dare to discipline him. Instead, he told the OIG that he had been "orally reprimanded" and "threatened with discipline" if he did not remain at his position. The agent claimed that he could "see a mile in each direction," and that when areas 300 or 400 yards away were flooded with aliens, he would nonetheless assist the agents in those areas.
By his own admission, the threat of discipline infuriated the No. 1922, and he acknowledged that he decided he would leave his position to help other agents "regardless of what his supervisors wanted." Indeed, he said he left his position "on purpose" because of the threat of discipline. He said the "boiling point" was the summer of 1995 when he left his area after being repeatedly told not to do so. Although his supervisors threatened to take action, the agent said that nothing happened.
No. 1922 told the OIG that his decision to leave his position depended on whether he liked the agent who needed assistance. If he liked the agent, he would "pull off and go help him." If not, he would do nothing to help.108
Both No. 1922 and one Union official suggested that orders to remain in position were not "legal." No. 1922 claimed that it was wrong for supervisors to order him not to leave his position and to reprimand him for doing so, because the policy forbidding this action is not in writing. He argued, "There's nowhere in the rule book that says I can't leave my spot to go catching aliens." He asked, "Where is the order? Where is it written that I have to sit?"
When we asked the Union official whether he believed that agents who have disobeyed an order to remain in position should be disciplined, he replied that "the legality of the order" must be examined to determine whether it complies with common sense. If an agent leaves his position to apprehend aliens who are 50 yards away, and no other aliens enter his position during his absence, admonishing that agent for leaving his position makes no sense. The witness's argument misses the point, however. Orders to remain in position are unquestionably legal, regardless of whether an agent agrees with the underlying strategy. Agents are not free to use their judgment to disregard orders. Under witness's approach, agents would be free to ignore any orders that do not make sense to them. Such a policy would lead to chaos. The Border Patrol's operations depend on each agent carrying out his assigned duties.
Although this witness argued that agents should not be required to ask permission to leave an assigned position to apprehend aliens, he conceded that permission should be sought when an agent leaves his post for personal reasons. Whether an agent leaves his position to apprehend aliens or to obtain coffee, however, the post has been abandoned. The witness's real objection here is to the agents' loss of autonomy in deciding how and when to apprehend aliens. And implicit in his argument is a suggestion that supervisors might unreasonably withhold permission to leave a position to apprehend nearby aliens. We saw no evidence of this.
Of all the witnesses we interviewed, only No. 1922 described an incident where permission to leave a position was denied. No. 1922 testified that an agent assigned to a border position observed a number of aliens congregating. The agent radioed other agents and "ordered" them to move out of their positions to support him and his partner. A supervisor countermanded the agent's instruction, stating that there were no agents to spare, and allegedly commented that "we're not supposed to catch aliens." No. 1922 conceded that the agent had transmitted his order over the radio without first consulting the supervisor. No. 1922 also said that the agent "sometimes comes off a little cocky, arrogant on the radio." No. 1922 said the agent did not like the supervisor and went out of his way to "piss him off."
We spoke to the supervisor, and he denied ever instructing or suggesting to agents that they were not supposed to catch aliens.109 He commented that he was "not a big hit" with some of the agents he supervised because he required them to remain at their assigned positions. He said that it was "impossible to get the agents to stay on their X," and that "as soon as agents left their area, it would get `crazy'" (meaning numerous aliens would enter the area).
During our investigation, a Union official told us that a Campo agent had recently been admonished for tracking 50 aliens north of his position. Some agents claimed that this incident proved that supervisors were trying to prevent agents from apprehending aliens. Because we received this complaint shortly after the alleged incident, we were able to interview all of the relevant witnesses while their memories were fresh, and to obtain all of the relevant documentation, including copies of the radio transmissions between the supervisor and the agent.
Most of the facts were not in dispute. Because the Campo Station is responsible for a long stretch of the border, it does not employ a series of fixed positions. Instead, the border region is divided into zones; two agents are assigned to patrol each zone. This constant patrolling of the border is intended to deter entry and to reveal the location and number of aliens who have entered an area. When patrol agents uncover evidence of alien traffic, they contact backup units called Mobile Interdiction Teams (MITs). These units - which are responsible for tracking and apprehending alien traffic - respond to reports from the zone agents in their area, to sensor hits, to scope sightings, and to any other information indicating illegal entry.
On June 28, 1997, a line agent assigned to one of the primary units responsible for patrolling the border observed footprints indicating that approximately 50 aliens had recently crossed the border. He began tracking this group north out of his assigned area. He alerted agents on the MIT assigned to his zone, and they joined him in tracking this group. He did not notify his supervisor that he was leaving his area; did not arrange for backup to cover his assigned area; and left the other agent assigned to the primary unit in his zone without backup.
Eventually a supervisor came to the agent's assigned area and observed that he was not in position. After the supervisor learned that the agent was several miles away tracking traffic with other agents, he tried to contact him by radio. After some difficulty, a message was relayed to the agent to meet his supervisor at a certain location. The agent then radioed Sector Dispatch and told it to record that 50 aliens had escaped because he had been ordered to terminate his pursuit. The supervisor later disciplined this agent.
Based on our interviews of the individuals involved and all of the relevant documentation, we find that this agent was not disciplined simply because he had tried to apprehend aliens. It is undisputed that the supervisor only called back the one agent who was out of position. He never ordered or even asked the other agents tracking the group to halt their efforts. The supervisor clearly was concerned about the agent being out of position, not that the agent was tracking a large group of aliens. Indeed, at the time the supervisor called the agent back, he was unaware of the size of the group being tracked. The supervisor had no reason to believe that the pursuit would end because he had called one agent back to his position. Moreover, the other agents continued tracking this particular group for 30 additional minutes. In sum, there is no evidence that by calling the one agent back to his position the supervisor intended to allow 50 aliens to escape.
We further find that the agent who abandoned his position acted improperly. First, despite being told at musters that agents in primary patrol units must inform their supervisor before tracking aliens, he made no effort to do so. Second, even if he was concerned that the group might escape if he did not start tracking it immediately, he could have and should have returned to his position once the MIT agents took up the pursuit. Instead, he strayed nearly five miles out of position. Third, this agent abandoned his position without cover, and left the other agent in his border unit without backup. We conclude that this agent exercised poor judgment and deserved a reprimand.
After reviewing all of the evidence, we conclude that agents who left their positions to apprehend aliens were not later disciplined simply because they had apprehended aliens. We reach this conclusion for a number of reasons. First, the evidence indicates that agents who left their positions were reprimanded whatever their reason - whether they left to apprehend aliens, to eat a meal, or to go home early.
Second, numerous agents testified that they were permitted to leave their positions to pursue aliens after notifying their supervisor and arranging for cover from other agents located nearby.
Third, numerous agents we interviewed flatly rejected the claim that agents were being disciplined for catching too many aliens. Agents testified that they had never heard of anyone getting into trouble for apprehending aliens, and declared that this concept was "ridiculous." Agents who made numerous apprehensions were considered "hard chargers" and were praised, not reprimanded.
Fourth, the majority of the cases where agents were admonished were fairly egregious; the agent was significantly out of position, the agent had been warned previously numerous times about leaving without permission, the agent had been out of position for several hours, or the agent was not doing his job at all. Many witnesses testified that supervisors usually asked why they were out of position. They said the supervisors were upset when the agent did not have a good reason for being away.
Finally, the written reprimands we reviewed indicated that the agents were being disciplined for disobeying orders, not because they had apprehended aliens.110
In sum, we found no evidence indicating that agents were admonished or disciplined for apprehending aliens. Discipline was in all instances tied to an agent's decision to abandon his assignment without permission.
Although we found no evidence of supervisory wrongdoing, we did observe inconsistency among supervisors in how much latitude agents were allowed to pursue illegal traffic in adjacent areas. Some agents were genuinely confused as to what they could or could not do depending on who was supervising their area on any given night.
As we have stated previously in other contexts, Border Patrol management should formulate clearer and more consistent policies in this area so that agents know what is expected of them and why. Supervisors should discuss and agree on what freedom of movement is acceptable and communicate a consistent policy to all agents. Conversely, agents must recognize that they are part of a team and that each team member has a particular role to fill. Absent an emergency, an agent's assigned duties must take priority over other activity.
3. Allegations that agents are intentionally assigned to low traffic areas
In a July 6, 1996, Los Angeles Times article, Bonner alleged that agents were being deployed in locations where there was little opportunity to apprehend aliens. During our investigation, nine other agents echoed this complaint.
Two agents assigned to Campo Station complained that the Tecate area was patrolled while large areas east of Tecate were left unpatrolled. They believed that this allocation of manpower was designed to minimize apprehensions. One agent testified that historically Tecate had not experienced heavy alien traffic, and that increasing patrols in this area deprived areas further east of valuable manpower resources. He claimed that alien traffic in the Tecate area consisted of "mom and pop" groups, not large smuggler activity.
Other witnesses' testimony and documentary evidence demonstrate, however, that the dispute concerning the Tecate deployment reflected a disagreement about strategy, not an effort to artificially suppress apprehensions. Tecate is a port of entry, which - at the time of the alleged misconduct - was located at the western edge of Campo Station's area of responsibility.111 Increased patrols in the western stations had caused smugglers to substantially increase alien traffic through Tecate. In response to this surge in traffic, the Border Patrol installed stadium-style lighting in the port area and created several fixed positions to the east of the port of entry. Because of its proximity to Highway 94, the port area was particularly attractive to alien traffic. The positions near the port were intended to deter illegal traffic from entering at this location and to force it further east where it would take hours to reach transportation.
The claim that Tecate was a low traffic area when the new fixed positions were created was contradicted by credible testimony from both El Cajon and Campo Station personnel. Numerous witnesses confirmed that the area surrounding the port was frequently "overrun" with alien traffic, and that additional positions were necessary to deter and intercept that traffic. Although historically the area may not have seen heavy traffic, these witnesses indicated that the eastward movement of alien traffic had changed traffic patterns at Tecate.
The agents who complained about the new positions said that virtually all of Campo Station's agents were assigned either to a checkpoint on I-8 or to the area near the Tecate POE. They noted that only two agents patrolled the remaining Campo area, which was also experiencing high levels of traffic. Other agents explained, however, that at the time Campo Station did not have sufficient manpower to adequately patrol the port of entry area, the checkpoint, and the remaining Campo area. The Station elected to assert control over the Tecate area and then, as more manpower became available, to seek to extend control further east. While managers were well aware that large groups were crossing at locations further east of Tecate, they decided to concentrate resources at the Tecate POE and push the area of control eastward progressively instead of scattering resources. The decision to assert control over the most vulnerable section of the Station's area of responsibility was not irrational and was consistent with the overall Sector strategy of gaining control in the west and asserting control eastward as resources became available. Although not everyone agreed with this approach, the mere fact they disagreed did not mean that its use was evidence of wrongdoing.
Although two witnesses complained that the Station waited too long after Tecate was under control to begin shifting resources to other areas, the decision to delay such a transfer was not driven by a desire to artificially limit apprehensions. Contemporaneous documents demonstrate that managers were concerned that shifting existing resources eastward too quickly could lead to a loss of control in western areas. As noted above, the Border Patrol's experience at Imperial Beach (see pp. 109-110 supra) had convinced management that a premature transfer of resources could lead to setbacks in areas where control had previously been established. Although some agents may have believed that resources should have been transferred elsewhere as soon as the Tecate area was brought under control, the fact that resources were not immediately removed from Tecate does not - given the Border Patrol's experience at Imperial Beach - constitute evidence of improper intent.
While one or two agents at Imperial Beach, Brown Field, and El Cajon repeated the allegation that agents were being reassigned to low traffic areas, in each instance we found these complaints unsubstantiated. In several cases, these complaints reflected no more than agent distaste for stationary positions. In other cases, when we spoke with agents who had allegedly been reassigned to low traffic areas, these agents flatly denied the allegation.112
In any event, there was ample testimony and documentary evidence that the placement of agents along the border was determined by the level of traffic encountered in particular areas - the more illegal traffic an area experienced, the more agents were assigned to that area. Contemporaneous memoranda from managers demonstrate beyond question that agent resources were directed to locations where illegal traffic was most intense. Each of the stations added positions as trouble spots along the border were identified. To facilitate these decisions, agents were required to document where aliens entered the country and where they were apprehended. Sensor and scope reports were likewise reviewed to reveal traffic patterns. Once weaknesses in the line were identified, additional personnel were directed to that area. In sum, we saw overwhelming evidence disproving the claim that agents were deliberately assigned to low traffic areas to avoid apprehensions.
102 The agent identified one supervisor who allegedly told agents they were not to move. The context of the supervisor's remarks, however, clearly indicates that he was telling agents not to move from their assigned areas rather than saying they were to remain immobile. He said another supervisor told agents at muster that their job was to prevent aliens from entering the country. The agent said, in his judgment, "prevent" meant "do not catch."
103 One agent testified that some agents brought portable televisions to watch while on their X, while others would read or sleep during such assignments.
104 We obtained and reviewed copies of several of these written reprimands.
105 One agent left his position to look for vehicles smuggling aliens on Interstate 5 because he said he wanted to arrest a criminal alien. He said he believed this would give him a better chance of receiving an outstanding rating. Another agent was known for being out of position "all the time" and was sometimes located in another station's area of responsibility. At Brown Field several agents received written reprimands for leaving their positions on the mountain to go home before their relief arrived.
106 One Union official conceded that much of the problem was "tactical considerations" that were beyond the scope of the individual agent who did not have the "big picture."
107 One witness claimed an agent at Brown Field had been disciplined for being 50 yards from his position. No such agent was located. The OIG did locate an agent from Imperial Beach who said he had been admonished for being 20 yards out of position. He said the FOS later dropped the matter and apologized, admitting the matter was foolish.
108 He said if he does not like the agent, he does not care if the agent is "getting his ass kicked;" he will not help "the weasel."
109 The supervisor's one exception to this statement concerned Interstate 5. Because of the extreme danger presented by freeway traffic, he did not permit agents to apprehend aliens on the freeway.
110 No agent reported discipline more serious than a written reprimand.
111 In October 1997, El Cajon Station became responsible for the Tecate POE.
112 In some cases the rumors were based on a misunderstanding of central facts. For example, several agents complained that sometime between April and June 1996, Campo agents could no longer work in the Jamul area because they were apprehending too many aliens. First, it was Brown Field, not Campo, that had the responsibility for Jamul. Second, around that time Brown Field agents stopped working that area. This was because responsibility for Jamul was transferred to El Cajon. Indeed, El Cajon eventually opened a storefront office in Jamul where citizens could report information regarding alien traffic.
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| Operation Gatekeeper: An Investigation Into
Allegations of Fraud and Misconduct |