18.

The Everywhere Border

THE AIRCRAFT WITH CALL NUMBER CBP 104 STARTED DOWN the runway of Grand Forks Air Force Base in North Dakota at 9:10 a.m. CDT on Friday, May 29, 2020. It was 55°F, an unseasonably cool morning for late May, with cloudy skies and a fifteen-mile-per-hour wind blowing in from Canada to the north. The aircraft was painted gray, with a blue vertical band in the middle. The thin, sleek design, and the unusual feature of a single propeller at the rear, made it look almost like a submarine as it took off. The Predator drone, one of ten operated by Customs and Border Protection, ascended to 20,000 feet, but then it headed southeast, away from the Canadian border where it typically carried out its surveillance.

Rebranded as a front line against terrorist infiltration after 9/11, the Border Patrol reaped the reward in billions of dollars of appropriations. In addition to more than doubling the number of Border Patrol agents, CBP also invested in a wide range of surveillance equipment that would have previously been off-limits due to cost and the sense that sophisticated military equipment was unnecessary for immigration enforcement.

CBP framed every data point in a way that would lead to more funding. For example, in 2019, their Northern Border Threat Analysis Report noted that the vast majority of travel across the Canadian border was normal and legal. However, the routine normalcy itself was described as a threat because the volume of traffic meant that bad actors could blend in and allow “individuals who may pose a national security risk to enter the United States undetected.”¹

Among the flood of new equipment, Air and Marine Operations (AMO) acquired the largest fleet of drones that operates inside the United States, along with a wide range of other aircraft and ships. These included single-engine Cessnas as well as huge Lockheed Martin P-3 Orion long-range tracker planes, which have a crew of eight and are used to search for smuggling submarines in the Gulf of Mexico and off the Florida coast. AMO purchased ten Predator drones, but two have crashed, in 2006 and in 2020. Five of the remaining drones are configured to monitor land environments, and three are maritime variants for missions over oceans. The drones fly out of several different bases, including Sierra Vista, Arizona; Corpus Christi, Texas; San Angelo, Texas; Jacksonville, Florida; and Grand Forks, North Dakota.

Most of the flight plans send the drones straight to the border, where they fly grids above the immediate area. Occasionally, they will deviate to a specific location near the border and fly in a circular pattern, providing eyes in the sky for agents on the ground. The Predator drones have regular and infrared cameras that allow full motion videos, as well as different sensors that allow for measurements of terrain and tracking moving vehicles at night. The Predator drones do not have cameras sensitive enough to use facial recognition software, but CBP also has many smaller tactical drones that do.

In 2014, the inspector general of the Department of Homeland Security found that CBP’s Predator drones were expensive to operate, costing $12,255 per flight hour, and had a relatively small impact on apprehensions or drug seizures.² Drones cannot make apprehensions on their own, so the data is based on apprehensions in which the drone provided assistance. Even with that broad definition, in 2016 Predator drones played only a part in the apprehension of 1,729 people, or 0.4 percent of all apprehensions that year.³

On that Friday morning in May 2020, the Predator drone headed in the opposite direction of the Canadian border. Within a few minutes, it crossed over the Red River, which marked the North Dakota state line with Minnesota. It proceeded southeast over the thousand lakes that dot western Minnesota, then over Saint Cloud, before reaching the urban center of Minneapolis–Saint Paul at 10:47 a.m. It then began a hexagonal-shaped holding pattern over the city at an altitude of 20,000 feet. Minneapolis is outside the one-hundred-mile zone where the Border Patrol normally operates, but the AMO authorization does not have geographical limits.⁴

As the Predator drone circled above, the city of Minneapolis was dealing with the aftermath of the killing of George Floyd. Four days earlier, on May 25, Floyd was accused of trying to pass a counterfeit twenty-dollar bill at a convenience store. When the police arrived, they detained him and pinned him on the ground for over nine minutes with Minneapolis police officer Derek Chauvin’s knee pressed on his neck. Floyd died, and the video of the killing set off protests around the city. On May 26, the four officers involved were fired. On Friday, May 29, as the CBP drone circled overhead, Chauvin was arrested on charges of third-degree murder and second-degree manslaughter. Neither charge accused Chauvin of intentionally killing Floyd, which further inflamed protests in Minneapolis, across the United States, and around the world.

The CBP drone, ostensibly purchased to monitor the border for immigration violations, was in the skies over Minneapolis to monitor American citizens protesting the killing of George Floyd. The Predator circled the city for an hour and a half before heading back to Grand Forks at 12:15 p.m. After a reporter noticed the flight pattern and tweeted about it, several news organizations reported on the mission. CBP acknowledged that CBP 104 was their drone: “Earlier today a U.S. Customs and Border Protection, Air and Marine Operations unmanned aircraft system was preparing to provide live video to aid in situational awareness at the request of our federal law enforcement partners in Minneapolis.” The CBP spokesperson continued, “AMO carries out its mission nationwide, not just at the border, consistent with federal laws and policies.”⁵

The CBP drone deployment to Minneapolis was not a one-off incident. In the first three weeks of the nationwide protests about police killings of Black men and women, there were deployments of CBP helicopters, drones, and airplanes in fifteen cities across the United States from Dayton, Ohio, to New York City. The video surveillance data they produced was not just used in real time; it is also stored in a digital network that can be used later.

In 2019, CBP’s Air and Marine Operations did 92,800 hours of flights, including all their aircraft from helicopters to drones, of which 8.6 percent (8,000 hours) were for other agencies.⁶ A 2017 assessment of the CBP drone program found that 20 percent of drone flight hours were for operations outside the border and coastal areas where it had FAA preapproval to operate.⁷ Many of these flights were in support of Immigration and Customs Enforcement actions inside the United States, but 2 percent were for local law enforcement. These other deployments have included providing surveillance during active shooter incidents or when local police have carried out a large raid. Over the years, CBP drones have been used by the FBI, the U.S. Marshals, the Coast Guard, the Minnesota Bureau of Criminal Investigation, the North Dakota Bureau of Criminal Investigation, the North Dakota National Guard, and the Texas Department of Public Safety.⁸

CBP drones based in Great Falls, North Dakota, have been deployed multiple times to monitor Indigenous environmental activists attempting to prevent the construction of oil pipelines. The CBP monitoring began with the Standing Rock Sioux protests against the Dakota Access Pipeline in 2016 at their reservation that straddles the North and South Dakota border. CBP contributed to the police presence when the local sheriff’s office requested and received the use of a drone for surveillance of the protests.

In 2020, journalists at Gizmodo conducted a deeper investigation into CBP flights from the North Dakota base. Using publicly available flight paths, they found that CBP flew missions in February 2020 that tracked the planned route of another pipeline by Canadian energy company Enbridge Inc. The drones also surveilled the homes of anti-pipeline activists, including, on February 21, 2020, an hour spent circling over the remote rural home of Indigenous Environmental Network executive director Tom Goldtooth. The journalists identified five CBP drone flights between February and June 2020 that monitored the homes of Indigenous pipeline opponents.⁹

National Police Force

The expansion of Customs and Border Protection into the largest federal law enforcement agency has allowed the agents to be used for policing well away from the border itself. In the past few years, the Border Patrol has been deployed in an ever-widening range of circumstances that often have little or nothing to do with preventing unauthorized immigration. The most troubling part of the Border Patrol’s growth in both size and technical abilities is that it has occurred at the same time that apprehensions have declined substantially from their peak of 1.6 million in 2000. From 2010 to 2020, the Border Patrol averaged only a quarter that number, 435,000 apprehensions per year.¹⁰ The result is a lot of money and a lot agents, and not as much immigration work to do. As Jenn Budd, the former senior agent and now critic of the Border Patrol, explained, “I don’t know what they do. They have 20,000 agents and they have a quarter the number [of apprehensions] we used to get with 5,000 agents. So they are not on the border, let me tell you that.”¹¹

Traditionally, the federal government has not done policing inside the United States, but does maintain law enforcement agencies that conduct investigations or protect government buildings. The Tenth Amendment of the Constitution reserves anything that is not constitutionally designated for the federal government as the domain of the states. The Constitution does not authorize a national police force, so policing has been left to local and state governments. Additionally, the Posse Comitatus Act of 1878 prohibits the deployment of the military inside the United States, except under very specific circumstances. The National Guard is also a separate category, because they are always under the command of the governor of the state in which they are deployed.

Despite these restrictions that prevent a national police force, there are dozens of federal law enforcement agencies. However, each of these agencies has a limited purpose that usually revolves around protecting government buildings and officials, investigating federal crimes after they were committed, or locating people who were charged with a crime. On the protective side, the most well-known federal officers are the Secret Service, who are tasked with protecting the president and other high-level government officials. On the investigative side, the FBI is by far the most recognizable, but most agencies, from the Treasury Department to the Postal Service, have their own federal agents who conduct investigations.

The FBI and the other investigative agencies are not like beat cops who patrol the streets. Instead, they are only called to investigate after a crime has been committed. The FBI does do counterterrorism investigations that resemble regular police work, but only in that relatively narrow field. Immigration and Customs Enforcement (ICE), which is part of the Department of Homeland Security but separate from Customs and Border Protection, is tasked with locating and arresting people in the interior of the United States. ICE does not patrol neighborhoods for criminal activity. Instead, the agency is given a list of people who have violated immigration laws and then they find them, arrest them, and deport them.

The ability of the Border Patrol to police inside the one-hundred-mile zone, and of AMO to operate anywhere in the United States for surveillance purposes, sets Customs and Border Protection apart from other federal law enforcement agencies. The mandate for the Border Patrol to monitor public spaces allows the agency to take on roles that traditionally were reserved for local or state police. Jenn Budd, the former agent and critic, explained, “They don’t want anything to do with immigration anymore. That is why they have the BORTAC units [Border Patrol Tactical Units]. They intend to be a national police force. That’s why you are seeing them do actual police work in the joint task forces. They are trying to show ‘see, we can do this too.’”¹²

Rodney Scott, the chief of the Border Patrol from 2019 to 2021, was an advocate of the broader role for the agency. As Budd explained, Scott “is one of the ones that really pushed the Border Patrol to go all around the world when he was working in Washington D.C. from 2005 to 2007. He was telling people, if a car bomb goes off, I should know about it. So there is a creep, whether it is a creep into regular policing, or it’s a creep into intelligence. The management of the agency is just gung-ho to get their fingers into everything.”¹³

In President Donald Trump, the Border Patrol found a strong ally in their efforts to expand their authority. The Border Patrol Union, which represents over 18,000 of the agents, was one of the first major organizations to endorse Trump as a presidential candidate on March 30, 2016. It was the first time the union had ever made a presidential endorsement, and it continued to promote his policies until his election loss in 2020.¹⁴ While he was in office, Trump expanded the authority of the Border Patrol and directed its use in the interior of the United States. In February 2020, Trump authorized using BORTAC units on missions to support ICE operations to “flood the streets” with agents in sanctuary cities.¹⁵ As protests grew after the killing of George Floyd, BORTAC units were deployed to cities around the United States to protect federal buildings and monuments.

The first Border Patrol Tactical Unit was created in 1984, well before the expansion of the agency in the 1990s and the terrorism focus in the twenty-first century. The original purpose was to have a rapid action force that could be deployed quickly to put down riots in immigration detention facilities. BORTAC has since become a multi-use force that operates inside the United States and in other countries for missions and training.¹⁶ Over the years, BORTAC training began to mirror that of other elite special forces such as the Army Rangers and the Navy SEALs. The agents selected for BORTAC go through grueling tests like a six-mile march with a weighted pack and water training, including drowning situations. They are tested in high-stress environments with sleep deprivation.¹⁷ What they are not trained for are de-escalation strategies or civilian interactions, as DHS memos warned prior to the summer 2020 deployments to U.S. cities to deal with crowd control.¹⁸

Those deployments were not the first time aggressive tactics by BORTAC units had made the national news in the United States. Twenty years earlier, in 2000, a dispute arose over a six-year-old Cuban boy named Elián González. In November 1999, González was on a boat with his mother and twelve others as they attempted the crossing from Cuba to Florida. They set out at 4:00 a.m., but quickly encountered bad weather. The engine of the small boat failed. Waves crashed over the boat, sinking it. The boy’s mother and ten others died, but Elián was rescued by an American fishing vessel. The U.S. Coast Guard brought Elián to shore and he was released to his paternal great-uncle, who lived in South Florida.

In Cuba, Elián González’s father did not know his wife was taking the boy on the journey. After he found out from relatives in Florida that Elián was alive, he asked the U.S. government to return the boy to him in Cuba. The Florida relatives, however, thought it best for Elián to stay in Florida with them. They contested the repatriation in the courts but lost. Attorney General Janet Reno set a deadline of April 13 for the family to turn over Elián so he could be flown back to Cuba. They refused. On April 22, Reno authorized a BORTAC unit to raid their home and retrieve the boy, which they did.

An Associated Press photographer snapped a picture of the moment a BORTAC agent located the six-year-old Elián in a bedroom. The agent is dressed head-to-toe in green military gear and has an assault rifle held up, with his finger on the trigger, pointed toward the boy and his uncle who is holding him. Elián’s face is the epitome of terror as he clings to his uncle for safety. The photo won the 2001 Pulitzer Prize for Breaking News Photography.¹⁹

Kidnapping People

In the summer of 2020, amid multiple protests over police violence and the killing of George Floyd, President Trump authorized the deployment of Border Patrol agents in several cities around the United States, where they clashed with American citizens and grabbed people off the streets in unmarked vehicles. These deployments were not based on the sections of the U.S. code that traditionally govern the Border Patrol, but rather on little-known and previously unused sections of the U.S. code that give law enforcement authority to the secretary of the Department of Homeland Security. Section 40 USC § 1315 was a post–September 11 provision that allowed the secretary to protect government property. The provisions were written extremely broadly and, with an expansive interpretation, could be seen as authorizing a national police force. The designated agents can make arrests without a warrant for “any felony cognizable under the laws of the United States” and can “conduct investigations, on and off the property in question.”²⁰

Mitra Ebadolahi, a senior staff attorney at the ACLU, explained, “Because many of these newly established authorities were not immediately invoked, people fell asleep about them. A lot of people do not even know there are these other statutes. These other statutes have a lot of very permissive language, allowing DHS entities like CBP to act like a federal police force.”²¹

After President Trump issued an executive order in June 2020, DHS also expanded its guidelines for intelligence gathering to include these new internal policing efforts, including “Protecting American Monuments, Memorials, Statues, and Combatting Recent Criminal Violence.”²² The Border Patrol had a new mandate to conduct policing on America’s streets, far from the border itself.

The late-night detention in Portland, Oregon, described in this book’s introduction, when heavily armed agents forced a person into a waiting minivan, was carried out by a BORTAC unit operating under this new authorization. The person detained by the Border Patrol on that July 2020 night was Evelyn Bassi, a thirty-year-old Portland resident.

A security camera captured the events leading up to Bassi’s detention. Bassi and a friend were standing on the street corner in front of a Starbucks with no one else around. The dark gray Dodge Caravan minivan pulled up beside them, with the sliding door already open and with the heavily armed BORTAC agents sitting inside.

Bassi and the friend put their hands up and said, “We’re leaving, we’re leaving, we’re not causing any trouble.” Then, they turned to run. The minivan chased them and Bassi’s friend sprinted away. Bassi decided to double back toward the Starbucks, and the minivan did a U-turn to pursue Bassi. At that point, the other pedestrians arrived and used their phones to video the detention.²³

After Bassi was forced inside the van, it sped away from the scene. The Border Patrol agents drove seven blocks away and then stopped again. Bassi refused to provide a name but asked if it was a detention. The agents responded, “Yes.” Bassi asked for what crime, and the Border Patrol agents said someone matching Bassi’s description had shined a laser pointer in an officer’s eyes. They compared a photo they had with Bassi and decided it was a different person. After ten minutes, they released Bassi, who stood alone in the street and watched the van speed away. Bassi was one of at least four people in Portland who were similarly detained by BORTAC units in July 2020. In each instance, the armed agents swooped in with a minivan, grabbed the individual off the street, and then sped away. None were charged with any crimes.

The abduction of Evelyn Bassi off the streets of Portland appears to be a clear violation of Bassi’s First Amendment rights to freedom of speech and peaceable assembly and Fourth Amendment right to be free of unreasonable searches and seizures. Congress took a small step toward regulating the use of federal agents for local and state policing purposes through the National Defense Authorization Act that became law in January 2021. A provision in the law requires federal law enforcement agents deployed to a “civil disturbance” to display a visible identification that includes their name and the government agency that employs them.²⁴ After the late-night detentions in Portland, Ellen Rosenblum, the Oregon attorney general, filed a complaint that would have required agents to have probable cause or a warrant to detain someone, but a judge ruled the state of Oregon lacked standing in the matter. Several federal lawsuits, questioning the use of the Border Patrol for non-immigration purposes under section 1315, are ongoing.²⁵ The courts have yet to consider whether the Border Patrol’s lower standards of evidence for a stop and interrogation, which were meant to be limited to immigration questions, can be used when the Border Patrol is engaged in other law enforcement purposes.

George Floyd was buried in Pearland, Texas, on June 9, 2020. Temperatures pushed past 90°F as thousands of mourners lined the streets for a procession from the Fountain of Praise Church to the Houston Memorial Garden where he was to be laid to rest. Floyd’s body was in a golden casket carried by a white carriage with flowers on top, pulled by two white horses. The Houston police chief, Art Acevedo, walked the route beside the carriage, occasionally raising his fist in solidarity with the people gathered along the way.

As Floyd’s family mourned his death and television viewers around the country and the world looked on, the Border Patrol was mobilizing nearby. A CBP Predator drone circled overhead as sixty-six BORTAC agents and six snipers monitored the services in Texas. The deployment anticipated protests at the funeral and agents were specifically authorized to use tear gas and deadly force if violence escalated beyond simply throwing objects like water bottles.²⁶ Nothing of the sort happened and the agents did not use deadly force that day. Nevertheless, they could have.

The increased use of the Border Patrol for missions that lack any immigration enforcement purpose illustrates how the agency has moved closer to becoming a national police force. The Border Patrol was established to conduct immigration checks at the border itself and within a reasonable distance of the border. As that zone expanded to be one hundred miles from the border and coastlines, the agents began to work deep inside the United States. More recently, they have taken on new policing tasks outside their historical focus on immigration. The first new assignment of drug interdiction was border related, but more recent areas of emphasis—from terrorism prevention to protecting federal buildings and monuments—have little or nothing to do with the border. Today, the size of the force, combined with the advanced military technologies at their disposal and their Supreme Court–approved ability to make warrantless stops in large sections of the country, makes the Border Patrol the most dangerous police force in the United States.