Published 2 September 2014
In what may become the most explosive scandal in the history of the U.S. Border Patrol, James F. Tomsheck, former head of Internal Affairs at U.S. Customs and Border Protection (CBP), accused his own agency of protecting its agents from criminal charges including murder, corruption, and graft. Tomsheck also directly pointed the finger at CBP senior management including former Commissioner Alan Bersin and Chief David Aguilar. Tomsheck, who served until June of this year as the head of internal affairs for U.S. Customs and Border Protection, characterized his agency as suffering from “institutional narcissism” and maintaining a culture which allowed its agents to act beyond “constitutional constraints”
In what may become the most explosive scandal in the history of the U.S.Border Patrol, James F. Tomsheck, former head of Internal Affairs at U.S.Customs and Border Protection (CBP), accused his own agency of protecting its agents from criminal charges including murder, corruption, and graft. Tomsheck also directly pointed the finger at CBP senior management including former Commissioner Alan Bersin and Chief David Aguilar.
In an interview with Andrew Becker of theCenter for Investigative Reporting, Tomsheck, who served until June of this year as the head of internal affairs for U.S. Customs and Border Protection, characterized his agency as suffering from “institutional narcissism” and maintaining a culture which allowed its agents to act beyond “constitutional constraints” (See Andrew Hacker, “Ousted chief accuses border agency of shooting cover-ups, corruption,” Center for Investigative Reporting, [14 August 2014]).
Seeking protection as a federal whistle blower for the second time in his career at CBP, Tomsheck alleged that 25 percent of the twenty-eight immigrant deaths at the border since 2010 were “highly suspect.” Since the events of 9/11, CBP has become the largest federal law enforcement agency with over 50,000 employees including more than 20,000 Border Patrol agents.
“In nearly every instance,” Tomsheck said, “there was an effort by Border Patrol leadership to make a case to justify the shooting versus doing a genuine, appropriate review of the information and the facts at hand.” (See also Randal Archibald and Andrew Becker, “Border Deaths, Lured by the Other Side,” New York Times [27 May 2008]; and Carrie Johnson, “Former Border Protection Insider Alleges Corruption, Distortion in Agency,”National Public Radio [28 August 2014]).
To date, no CBP agents have been charged with any crimes related to the deaths of these twenty-eight immigrants. Families of the victims, their attorneys, and human rights groups, including the ACLU, have criticized the Border Patrol for failure to provide the facts and findings of their investigations along with the identities of agents, if any, legally responsible for the deaths over a four year period.
While the present Secretary of DHS, Jeh Johnson, has repeatedly promised increased transparency since his recent appointment by the Obama administration, the public and researchers must still use the cumbersome Freedom of Information Act to gain basic information about the agency’s public actions and levels of performance (“Our Borders Are Not Constitution-Free Zones,”, ACLU).
Tomscheck stated that when he sent his investigative reports about the border deaths and other crimes by CBP agents up the line, senior leadership repeatedly ignored the findings. He specifically blames Alan Bersin, the former commissioner of the CBP, and David Aguilar, his Chief, for continually ignoring IA reports. Bersin, a former U.S. attorney for five years before serving as California’s Secretary of Education in Governor Arnold Schwarzenegger’s administration, is now the acting Assistant Secretary for Policy at the Department of Homeland Security . Aguilar retired from his position as acting Commissioner of CBP in February 2013; he currently is employed by Global Security and Intelligence Strategies.
Before taking over the position of director of IA at CBP, Tomsheck served as a U.S. Secret Service agent for twenty-three years. He led the IA unit for eight years. Still employed by CBP as the executive director for national programs, he has received support for his allegations from a variety of sources within and outside the CBP, and “no comment” responses from those he has identified as part of the systemic cover-up.
In recent months CBP finally disclosed partial data about internal affairs investigations into public allegations of abuse by Border Patrol agents; these data did not include reference to the twenty-eight border deaths. According to the CBP, out of 809 complaints of abuse by CBP agents from January of 2009 to January of 2012, only thirteen cases required disciplinary action against CBP agents. This astounding 1.6 percent rate byCBP would suggest its agents are by far the best-trained and professional law enforcers in a job that even critics agree is uniquely dangerous and creates high stress. (Robert Lee Maril, “1.6%: CBP data show dysfunctional Internal Affairs,” Homeland Security Newswire, 12 June 2014)
However, in 2012 other senior leadership in CBP suggested in briefings to the FBI that corruption among agents could be as high as 20 percent or more at the agency. In an attempt to address this problem, Tomsheck’s CBPIA partnered with the FBI in a pilot program called SAREX, Suspicious Activity Reporting Exploitation Initiative Pilot. But the chief privacy officer at DHS, among other leadership within DHS, highly criticized the program and SAREX was shut down.
“To a large degree, it (corruption) was an undetected problem and far more severe,” said Tomsheck, “than the actual number of arrests” of agents who committed crimes.
Tomsheck blamed part of the corruption problem upon the rush by CBP, as mandated by Congress in 2006, to enlist thousands of new Border Patrol agents. In the rapid ramp up to reach a goal of more than 20,000 agents from only 4,000 prior to 9/11, no pre-employment polygraphs of new recruits were administered. Previously, about 55 percent of the potential recruits to the CBP academy had failed polygraph tests. Tomsheck stated that before 9/11 between 5 percent and 10 percent of all border agents had committed criminal acts at some point throughout their career (other senior leadership in CBP supports these allegations by Tomsheck). But after polygraphs of new recruits were consistently bypassed in the hiring frenzy, corruption dramatically began to increase. Beginning in 2013, polygraphs were again used before new recruits were allowed to train at the CBPacademy in New Mexico.
“I think there’s every indication that my removal from the position…was an effort to identify a scapegoat,” said Tomsheck. For this reason he filed a complaint for protection under the federal Whistleblower Protection Act of 1989. This is not the first time Tomsheck has sought legal protection as a whistleblower. In August 2011 Tomsheck filed a letter of complaintdetailing how Aguilar, then Deputy Commissioner, had penalized his annual performance review because of testimony Tomsheck gave at a Senate hearing.
In his whistleblower complaint, Tomsheck asserts that Aguilar, “…challenged my answers to” and “…criticized my testimony before Senator Pryor. He initially stated and later yelled at me that my (Senate) testimony was not part of his ‘corporate message’ on corruption in CBP. He stated clearly that all comments by CBP leadership relating to corruption or integrity issues must comply with his ‘corporate message’.”
Subsequently, Tomsheck’s annual performance review was amended byCBP to reflect a much more positive performance.
Robert Lee Maril, a professor of Sociology at East Carolina University, is the author of The Fence: National Security, Public Safety, and Illegal Immigration along the U.S.-Mexico Border. He blogs at leemaril.com.
www.homelandsecuritynewswire.com
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