No free speech for border agent suspended for speaking to Congressman

September 27, 2006

U.S. Border Agents must ask permission before speaking to Congressmen. The policy became apparent after an agent was suspended for speaking to a congressman on an unannounced visit to the border.

Congressmen on such unannounced visits are being monitored by the Department of Homeland Security.

Congressional staffs, however, were unaware of the policy. Specifically, Border Patrol agents are required to file a “Significant Incident Report” when unannounced congressmen come to visit the border. Such reports are normally used to report shootings and other serious border incidents.

One agent was suspended for 10 days without pay for speaking with Rep. Steve King, R-Iowa, who visited the border unannounced in May.

"Preventing Congress from speaking freely to federal employees violates at least two federal statutes, and agents are fearful of telling the truth," said King, who related several visits to the Mexican border when Border Patrol agents would not speak with him for fear of reprisal.

"Filing these reports is a form of intimidation. If anyone is going to be punished, then they should be punished for not speaking to a member of Congress, rather than for telling the truth."

Rep. Ted Poe, R-Texas, who also has made unannounced visits to the border, said he is concerned congressional oversight of border matters has suffered as a result of the Homeland Security monitoring. Poe echoed King's assertion that forcing agents to file reports is a form of intimidation, and said Congress is prepared to call for hearings and issue subpoenas to investigate the matter.

"Members of Congress should not be under surveillance by Homeland Security because we ask the tough questions (of) border agents, and border agents should not be intimidated into having to report our visits and conversations with them like we are criminals," Poe said. "Members of Congress are not the enemy because we want to find out the truth at the border."

Michael Friels, a spokesman for U.S. Customs and Border Protection, denied that the incident reports were meant to keep tabs on congressional representatives, adding that the reports were simply an effort to keep U.S. Customs and Border Protection leadership informed about congressional visits.

"I think a (Significant Incident Report) is a matter of awareness," Friels said. "It's to ensure our agency is aware of high-profile visitors, media activity and significant arrests -- anything our leadership needs to know in order to have appropriate situational awareness."

Friels said that he could not comment on the suspension of a U.S. Customs and Border Protection agent who spoke with King because the matter is "still pending an administrative process."

In a May 10 memo, Clint Stoddard, special operations supervisor and a Tucson (Ariz.) Sector commander with Customs and Border Protection, notified all supervisors to set new standards for reporting Border Patrol agents who have any encounters with visiting congressmen. The policy is in effect nationwide.

"Recently, Iowa Congressman King visited the border area," the memo states. "An IIR (local report) was done on one of two contacts with our agents. A request was made by HQOBP (Headquarters of Office of Border Patrol) to elevate these types of contacts to an SIR (Significant Incident Report). Sensitivities are such that this type of information is critical in the D.C. area. Much is going on in the way of legislation proposals and such.

"The clear intent of this policy is to discourage employees with firsthand knowledge about the porous state of our borders from sharing that information with members of Congress," said TJ Bonner, president of the National Border Patrol Council, the union representing about 11,000 Border Patrol agents. "In order for our democracy to function properly, citizens and lawmakers must have access to the unvarnished truth."

Withholding information from congressional leaders violates the Homeland Security Act of 2002, Bonner added.

Under Title 6 of the United States Code, section 254, employees of the Border Patrol and several other agencies who willfully deceive congressional leaders face stiff penalties and termination. Bonner added that intimidating agents from speaking to congressional representatives is just as egregious.

"The Undersecretary for Border and Transportation Security may, notwithstanding any other provision of law, impose disciplinary action, including termination of employment, pursuant to policies and procedures applicable to employees of the Federal Bureau of Investigation, on any employee of the Bureau of Border Security who willfully deceives the Congress or agency leadership on any matter," the act states.

"They're asking border agents to violate their own policy," Bonner said.

Friels rejected that assertion, saying Customs and Border Protection officials want to make sure operations are adequately staffed while these visits take place.

"We want to coordinate these visits so we can continue our border security operations. They (agents) have a specific duty, whether it's patrolling the border or a CBP officer at a port of entry," he added.

Numerous field agents said directives from U.S. Border Patrol headquarters have also kept them from filing accurate reports about incidents along the southwest border.

"It feels like we just can't speak the truth," said an Arizona Border Patrol agent, speaking on condition of anonymity. "They want to know what we say and who we say it to. If we say something that doesn't fit with the agency line, then we're reprimanded.