II. The Fraud Allegations
Fraud allegations concerning Operation Gatekeeper were first communicated to the OIG in February 1996, when an INS employee gave a confidential statement to an OIG agent. Border Patrol Union officials began making public allegations of fraud in June 1996. The OIG investigated every allegation, regardless of the manner in which it was raised. In the following sections, we describe the various allegations and how they were brought to the OIG's attention.
A. Initial internal allegations
On February 2, 1996, an INS employee13 told an agent assigned to the OIG's Los Angeles Field Office that Johnny Williams, the CPA for the San Diego Sector, had ordered the INS supervisors14 and Border Patrol agents to falsify or alter internal reports prepared for the Attorney General regarding Operation Gatekeeper and "Operation Spring Plan" (the January 1996 program that expanded Operation Gatekeeper to the Sector's eastern stations). Sector Intelligence prepared the allegedly altered reports, which concerned the effectiveness of these two programs.
The informant claimed that the altered reports showed that the Border Patrol was apprehending approximately 70 percent of all illegal immigrants attempting to enter the Sector. The informant further alleged that a reader would assume that the report presented Sector-wide results when it actually reflected only 25 percent of the Sector.15 The informant also alleged that any effectiveness rate information that was unfavorable to the Border Patrol was omitted from reports sent outside the Sector. The informant did not identify or produce the specific reports that had allegedly been altered or were misleading.
The informant also alleged that CPA Williams ordered that information from Chula Vista agents concerning 500 "gotaways" (illegal immigrants who successfully enter the United States and elude apprehension by the Border Patrol) be deleted from Sector reports. Neither the report that had originally contained this information nor the allegedly altered report was produced by the informant.
Finally, the informant claimed that CPA Williams had deleted from reports to the Attorney General information indicating that Sector operations had not slowed illegal immigrant foot traffic into the Sector. Again, the specific reports in question were not identified or produced.
The informant did provide, however, a photocopy of a report that appeared to have been produced by the Western Region Intelligence Unit and faxed to the San Diego Sector on January 18, 1996.16 The informant produced this document to the OIG as an example of Sector management's reaction to unfavorable reports. Next to a paragraph claiming that there was an "alarming increase" in rock-throwing incidents at Imperial Beach Station was a handwritten notation, "what is this." Next to a paragraph describing bandit activity in the Barrett Lake Road area were the handwritten words, "not true." A photocopy of a routing slip from ACPA Ron Smith to CPA Williams and DCPA Beasley was attached to the report and contained the handwritten comment "lousy product."
The informant - who had never worked in the San Diego Sector - had no first-hand knowledge of any of the allegations he/she related to the OIG. The informant merely repeated information obtained from others.
The informant's account was memorialized by the OIG, and on February 12, 1996, the complaint was assigned to the Assistant Special Agent-in-Charge of the OIG's San Diego Field Office, Joseph Artes, for investigation in coordination with the OIG's Investigations Division Headquarters in Washington. Four days later, the Assistant Inspector General for Investigations, Thomas J. Bondurant, sent a memorandum to CPA Williams informing him that the OIG had received an allegation that the San Diego Sector's statistical reports regarding the effectiveness of Operation Gatekeeper were misleading because they overstated the rate of effectiveness, appeared to reflect the results of the entire Sector when they in fact related to only a portion of the Sector, and did not include any unfavorable information regarding the effectiveness rate. Bondurant requested that Williams provide the OIG with a description of the procedures used to prepare the statistical reports and respond to the specific allegations of misconduct. On April 29, 1996, CPA Williams responded to the OIG's inquiry with a cursory description of the Sector's reporting process.17 His letter did not respond to the allegations set forth in the OIG's memorandum. The investigation then remained inactive until June 26, 1996, when the OIG referred the complaint to the INS's Office of Internal Audit (OIA) for investigation.
B. The National Border Patrol Council's allegations
Public allegations of possible fraud in the conduct of Operation Gatekeeper first appeared in a June 1996 Harper's magazine article.18 The 16-page article - entitled "Masters of the Game: How the U.S. Protects the Traffic in Cheap Mexican Labor" - focused on the Border Patrol's efforts in the San Diego Sector since Operation Gatekeeper began. The article noted that management and line agents disagreed about the effectiveness of the new program, and commented that while "[a]dministration officials" pronounced Gatekeeper a success, an unidentified line agent had told Harper's that the border was "no more controlled [after Gatekeeper] than when [he] got there."19
Near the conclusion of the article, Harper's claimed that the INS management in an effort to guard against any cracks appearing in the agency's claim that its efforts are having the intended impact at the border, has encouraged supervisors to keep apprehension numbers below a certain threshold.
The magazine claimed that "veteran agents" had "repeatedly" alleged that supervisors had accomplished this result by "diverting agents from other stations" and by "failing to process apprehended aliens." The article did not identify the agents or indicate how many had made these allegations, however. The unidentified agent mentioned above was quoted as saying:
If we catch more than 200 a day it's against us... and at I.B. station we've been told constantly, "Don't catch `em, you're catching too many." And the reason I said 200 is because that is the magical number we can't go over. If we go over 200 in a twenty-four hour period the chief gets a call from [Commissioner Meissner] when she gets a call from [Attorney General Reno] and heads start rolling and threats are made.
In the Harper's article, this same unidentified agent also alleged that he had seen his supervisor falsify documents "continuously." If agents apprehended 500 aliens, the supervisor reported 200 apprehensions. The article did not identify the supervisor or provide any time frame in which these events allegedly occurred. Finally, the article did not indicate that the author had reviewed documentation that supported these allegations.
The Harper's article did not mention the National Border Patrol Council (NBPC) or link Union members to the fraud allegations in any way. Indeed, prior to the June 1996 Harper's article, the Union had not publicly or privately raised any claims of fraud in its monthly meetings with San Diego Sector Border Patrol management or elsewhere.
Although the Harper's article contained serious allegations of fraudulent conduct, it did not provoke any immediate reaction from Congress, the INS, the Border Patrol, or other media. On June 23, 1996, however, an article appeared in the North County Times - a north San Diego County newspaper - which reported wide-ranging accusations of fraudulent conduct concerning Gatekeeper.20 This article was written by a local reporter, Billie Jo Shepherd, who was a source for the Harper's piece.21
Shepherd's article began by alleging that Operation Gatekeeper was a failure, and that "immigration authorities [were] falsify[ing] records and alter[ing] intelligence reports to make it look as though the project is a success." The article claimed that agents had been instructed to "[l]ook the other way as immigrants pass nearby; report fewer numbers of illegal crossers than they catch; and transport captured immigrants to East County stations to make it look as though the flow of traffic is moving east." These allegations were purportedly based on interviews of T. J. Bonner, the president of the National Border Patrol Council,22 and of Joseph Dassaro, the spokesman for Border Patrol Council Local 1613 (the local representing agents in the San Diego Sector). Shepherd reported that the fraud allegations stemmed from Bonner and Dassaro's "personal experience and from agents complaining [to them] about tactics and directions from their supervisors."
In the article, Bonner and Dassaro contended that public perceptions about the success of Operation Gatekeeper were "based, at least in part, on a fiction." Bonner alleged that "[m]any immigrants captured in the western areas are returned to Mexico rather than arrested to keep the urban arrest figures down" and that "agents' intelligence reports are being altered to support the contention that Gatekeeper has succeeded in pushing smuggling efforts to the east." Bonner also claimed that "supervisors will tell agents directly to keep their arrests down. When officials are confronted with their statements, they claim that their remarks were misinterpreted." Bonner further alleged that agents had been deployed in a manner designed to prevent them from apprehending immigrants; for example, agents were told to remain in their fixed positions and to ignore aliens passing by. Finally, Bonner claimed that he had received complaints from agents whose intelligence reports had been sent back for changes "that better reflect INS contentions that Operation Gatekeeper is working."
Bonner and Dassaro were the only sources discussed in the article. Shepherd's piece did not specify which reports were allegedly altered, did not specify at which stations or when these activities had occurred, and did not attempt to measure the impact of the alleged wrongdoing on the statistics previously reported by the Border Patrol. Ms. Shepherd told the OIG that she was not shown any falsified reports but simply assumed that Bonner and Dassaro had seen such reports.23
The North County Times article prompted a rapid response from the Border Patrol and the INS. CPA Williams quickly learned about the article and brought it to the attention of Commissioner Meissner and John Chase, Director of INS Office of Internal Audit (OIA). Commissioner Meissner ordered that an investigation of the allegations contained in the article be initiated immediately.
On June 27, 1996, OIA agents interviewed T. J. Bonner at OIA's Washington offices regarding the North County Times allegations. In this interview, Bonner alleged that intelligence reports regarding Imperial Beach Station - although accurately prepared at the Station - were falsified by Sector Intelligence Unit personnel. Bonner refused to identify his source for this allegation or to identify anyone who purportedly had falsified records. Bonner did state that he had no first-hand knowledge concerning the alleged misconduct.
Bonner further alleged that he had received "communications" which indicated that supervisors were ordering agents "to keep arrests down." He conceded, however, that he had no first-hand knowledge that supervisors were ordering agents to "look the other way" or not to apprehend more than a certain number of aliens. He claimed, however, that "at many stations" agents were deployed in a manner that prevented them from apprehending more than a "certain number" of illegal immigrants in an eight-hour shift. At Campo Station, for example, agents could not leave their assigned area of responsibility without a supervisor's permission, even if they observed large numbers of undocumented aliens passing by.
Bonner also claimed that supervisors were instructing agents to report fewer apprehensions than were actually made, and to not document aliens who were apprehended. At Imperial Beach Station, according to Bonner, unprocessed illegal immigrants were being placed on buses and returned to Mexico through the San Luis, Arizona or Andrade, California ports of entry. He also alleged that supervisors were ordering agents to transport apprehended aliens to eastern Border Patrol stations for processing to make it appear that they had been apprehended in the east, and that Operation Gatekeeper had succeeded in shifting illegal traffic eastward. Finally, Bonner contended that CPA Williams reviewed intelligence reports each day before they were sent to the INS's Washington Headquarters, and if he did not agree with their content, he returned the reports to the applicable station for changes.
Bonner urged OIA to conduct an investigation of these allegations, and suggested that investigators should begin at Imperial Beach Station where all the wrongdoing was taking place. When asked about the possibility of OIA interviewing agents in the San Diego Sector to confirm his allegations, Bonner stated that numerous agents would come forward to validate his charges. Bonner requested that agents be permitted to have Union representatives present during the interviews, however, and that they be granted immunity prior to their interviews.
On June 28, 1996, Bonner gave OIA a draft Memorandum of Understanding between the Union and the INS concerning the proposed interviews, including the presence of Union representatives and immunity for agents from criminal or administrative action based on their testimony. No agreement was entered into by Bonner and OIA, however.24
That same day, DCPA Harold Beasley, Sr., sent a memorandum to all San Diego Sector personnel with a copy of the North County Times article attached. The memorandum stated that OIA personnel would be in San Diego on July 1, 1996, to interview anyone with information regarding the allegations set forth in the article. The memorandum also stated that those who took part in the OIA interviews could do so with "complete anonymity."
On July 1, a team of OIA investigators arrived in San Diego, and on July 2 these investigators interviewed Dassaro concerning the North County Times allegations.25 Dassaro testified that he had no personal knowledge of any falsification of reports and that he was confident that such misconduct was not occurring at Imperial Beach Station, where he worked. He said that his allegations of fraud in the North County Times article were based entirely on hearsay, and related exclusively to stations located east of Chula Vista.26 He emphasized to investigators that they should focus on Campo and Brown Field Stations, because no misconduct was occurring at either Imperial Beach or Chula Vista Stations.
With respect to his specific allegations of fraud, Dassaro said that he had heard that superiors became upset when agents submitted scope reports27 that showed a large number of "gotaways." Agents would be given an opportunity to change the numbers in their reports, but were not required to do so. Dassaro also said that Chula Vista agents had complained that electronic sensors were being moved south towards the border so that they would not indicate that immigrants were successfully entering the United States.
When asked about the claim that agents were being asked to "look the other way" when immigrants passed by, Dassaro responded that this was a very subjective issue. He conceded that one might interpret supervisors' instructions as merely requesting agents to practice deterrence rather than apprehension methods. Dassaro further noted that some agents were confused about when they could leave their assigned positions to assist agents in other positions in apprehending illegal immigrants.
Dassaro said he did not tell the North County Times reporter that agents had been instructed to report fewer apprehensions than were actually made. In fact he testified that he did not know how it would be possible for agents to do this. He also stated that all apprehended aliens were properly processed. Dassaro further denied knowledge of any information indicating that aliens apprehended in the western areas were returned directly to Mexico in order to keep apprehension figures low. Dassaro did say that he had heard of one alleged incident at Brown Field when agents - who were being overrun - put apprehended aliens on buses and sent them back to Mexico without processing. Dassaro had no specific information concerning this alleged incident, however.
With respect to the claim that aliens were being transported east prior to their return to Mexico - in order to support a claim that Gatekeeper had succeeded in shifting illegal traffic east - Dassaro stated that the reporter had misinterpreted their comments. He said he and Bonner were not complaining about the Border Patrol transporting aliens to Calexico. Dassaro further commented that the reporter lived in East County and thus had a personal stake in her portrayal of Border Patrol performance in that region.
Dassaro refused to identify any agent who had given him information and further stated that unless agents were granted immunity, they would not cooperate with the investigation.
A Union representative was present during Dassaro's interview and volunteered his own responses to some of OIA's questions. This individual claimed that he was personally aware of Brown Field agents who had been "written up" for leaving their assigned positions to work alien traffic at the end of their shift. This witness claimed that the Field Operations Supervisor (FOS) wanted the agents present at their assigned positions at the end of their shifts so they would not apprehend any more aliens and make everyone have to stay late. He further claimed he had been reprimanded for leaving his position to respond to a radio call that there had been a "drive through" (someone cutting open the fence and driving a vehicle across the border).
This agent also claimed that if agents apprehended 1,000 aliens in one night, there would be "hell to pay" for the Patrol Agent-in-Charge (PAIC) of that station, and questions as to why so many aliens had been apprehended. He conceded that he did not know why such questions were asked. He acknowledged that supervisors never said "let these guys go," and he did not believe that supervisors wanted apprehended aliens to be freed.28
On July 2, 1996 - the same day as OIA's Dassaro interview - DCPA Beasley sent a memorandum to all San Diego Sector employees stating that the OIA team was in San Diego and giving directions on how interested employees who wished to speak confidentially to OIA could contact team members. Beasley's memorandum characterized the fraud allegations as "serious" and stated that OIA encouraged all employees with relevant information to come forward. Over the next nine days, OIA agents interviewed 22 Border Patrol agents about the allegations. When OIA attempted to re-interview Bonner, however, he refused, saying that he had nothing further to say and that "if [OIA] wanted to compel testimony, [OIA] knew how to do that."
On July 15, 1996, the California Assembly Subcommittee on Border Crimes held a hearing regarding "Operation Gatekeeper improprieties." Although the hearing focused primarily on the medical treatment received by injured illegal immigrants, Bonner testified about alleged fraud in Operation Gatekeeper.29
In his appearance before the California Assembly subcommittee, Bonner expanded on his earlier claims in the North County Times and accused the Border Patrol of engaging in "a comprehensive campaign of deception" regarding Operation Gatekeeper's effectiveness. He argued that because Gatekeeper's effectiveness had been measured strictly by the level of apprehensions, the Border Patrol could portray the new program as a success as long as apprehensions fell, regardless of how many illegal immigrants had successfully entered the United States. Bonner further claimed that the Border Patrol had adopted policies designed to reduce apprehensions, including the new rule that agents assigned to fixed positions could not leave those positions to apprehend aliens passing by. Bonner stated that when the new program failed to produce a drop in apprehensions, Border Patrol management ordered agents to engage in "irregular" practices, including turning illegal immigrants back into Mexico without apprehending them, not processing all aliens who were apprehended, and "mysteriously" losing apprehension records, all in an effort to artificially decrease the number of apprehensions. Bonner did not specify which stations were engaging in this fraud, identify any witnesses to the fraud, or estimate to what extent this misconduct had artificially reduced reported apprehension numbers.
Bonner also testified that Border Patrol management had manipulated other indicators of effectiveness "to create the illusion that Operation Gatekeeper is effective," including (1) deactivating or removing electronic sensors;30 (2) neglecting to relay citizen reports of alien traffic to field agents and refusing to permit agents to respond to those reports that were relayed; (3) deploying checkpoint personnel in a manner that prevented apprehension of illegal traffic that circumvented the checkpoint; (4) underreporting the sightings of illegal traffic by nightscope operators; (5) overestimating effectiveness levels; and (6) deleting "negative" information from reports sent outside the Sector.31
Bonner concluded his testimony by demanding that an "independent counsel" without ties to the Department of Justice be appointed to conduct an investigation of Operation Gatekeeper. Bonner claimed that an independent counsel was necessary because the Department of Justice had "played at least some role in this widespread attempt to deceive the citizens of this great nation."32
On July 25, 1996, Bonner, Ralph Boubel (a San Diego Sector agent and then official of the Union),33 and George McCubbin (then first vice-president and now president of Local 1613) appeared on a San Diego radio talk show and repeated the various allegations of fraud in Operation Gatekeeper.34 Again, these men did not identify any specific incidents of fraud, nor did they attempt to estimate the impact of the alleged fraud on reported apprehension numbers.
On August 9, 1996, Bonner and an anonymous Border Patrol agent (hereinafter, No. 1922)35 testified before the U.S. House of Representatives Subcommittee on Government Management, Information, and Technology.36 Bonner largely repeated his testimony before the California Assembly, but added a claim that the Border Patrol had deceived a Congressional Task Force that had visited the San Diego Sector on April 8, 1995.37 Bonner charged that inoperable vehicles had been towed to positions along the border, that agents were rescheduled and reassigned to areas that the delegation was visiting, and that cells that were normally overcrowded with detained aliens were cleared for the Congressional visit.
No. 1922 testified from behind a screen, and his voice was distorted to prevent identification. He was identified only as an Imperial Beach Border Patrol agent with approximately ten years' experience. His testimony included the following allegations:
1. supervisors were instructing agents to remain in stationary positions and not to leave those positions even to apprehend aliens;38
2. supervisors were telling agents that they were catching too many aliens, and setting limits of 200 apprehensions per day or 25 apprehensions per shift;
3. supervisors were ordering agents to return aliens to Mexico through the border fence;
4. apprehended aliens were being returned to Mexico without processing and completion of required documentation;39
5. paperwork documenting the apprehension of aliens was being destroyed;
6. supervisors were altering nightscope reports (for example, if a scope operator recorded seeing 150 aliens, his supervisor would erase the zero so that the report reflected sightings of only 15 aliens);
7. supervisors had deactivated sensors, thus depriving field agents of information concerning the route taken by aliens who had escaped apprehension at the border;
8. supervisors had directed that citizen reports of alien traffic were not to be relayed to field agents; and
9. fewer alien smugglers were being prosecuted by the United States Attorney's Office because of the implementation of more stringent guidelines for prosecution.
No. 1922 did not identify supervisors who had allegedly committed misconduct, did not specify when this misconduct occurred, and did not produce any documentation that supported his allegations.
13 This individual - whose identity is known to the OIG - is not a Border Patrol employee. Because this individual requested confidentiality, his/her name will not be used in this report or disclosed to the Border Patrol or INS.
14 Williams did not supervise any INS supervisors.
15 Although the informant did not specify the portion of the Sector which the reports reflected, it is well known that the rate of effectiveness (the percentage of illegal alien traffic that is apprehended) at Imperial Beach and other westernmost stations is significantly higher than the two easternmost stations, El Cajon and Campo. Thus, the complaint essentially was that the reports suggested that the Border Patrol was equally effective in the easternmost stations, a suggestion that all parties would concede is inaccurate.
16 A copy of this report is contained in the Appendix to this report at A-2.
17 Although the letter was ostensibly from Williams, it was actually drafted and signed by ACPA William Pink, who was Acting CPA during Williams' temporary absence from the Sector. A copy of this letter is contained in the Appendix to this report at A-5.
18 Although dated July 1996, this issue of Harper's was actually distributed in June. To avoid confusion, we will refer to this article as the "June 1996 Harper's article." A copy of the article is contained in the Appendix to this report at A-6.
19 The article claimed that this unidentified agent was a veteran agent assigned to Imperial Beach.
20 A copy of this article is contained in the Appendix to this report at A-4.
21 Ms. Shepherd, an East County resident, was a reporter for a small East County newspaper called the Alpine Sun. Shepherd told the OIG that when she was interviewed for the Harper's article, she was already at work on her own article concerning fraud in Gatekeeper. Shepherd had written several articles about the Border Patrol earlier in 1996, but none had contained any allegations of fraud. See, e.g., Shepherd, Billie Jo, "Clinton Administration claims serious measures on border," Alpine Sun, Page 1, January 19, 1996; Shepherd, Billie Jo, "Heading farther east?," Alpine Sun, Page 1, May 31, 1996.
22 President of the national union, Bonner lives in East County and has been assigned to the Campo Station for his entire career as a Border Patrol agent. For the past four years, Bonner has worked full-time on Union activities and has not actually worked as a Border Patrol agent in the field.
23 Ms. Shepherd prepared her article in some haste. After reading page proofs of the Harper's article, she contacted the North County Times and persuaded that newspaper to purchase an article from her concerning alleged fraud in Operation Gatekeeper. The paper gave her only two days to complete her story.
24 For a detailed discussion of the Union's role in the investigation and the efforts to interview Union officials, see infra at 37.
25 On June 28, 1996, Dassaro sent a letter to CPA Williams stating that the Union's criticism of Operation Gatekeeper in the media was not in the best interests of its members, and that Local 1613 would in the future "not publicly debate nor criticize the effectiveness of Operation Gatekeeper unless any of its strategies or tactics directly affect the health and safety of the bargaining unit members." A copy of this letter is contained in the Appendix to this report at A-16.
26 Dassaro also told investigators that his allegations were, in some instances, based on quadruple hearsay - fourth-hand information.
27 Nightscope operators produce reports reflecting the number of aliens they observe attempting to enter the country and how many are subsequently apprehended. For a detailed discussion of nightscopes and scope reports see Section IV.
28 This agent also alleged that Brown Field's scopes operators were reporting so many "gotaways" that the station completely stopped preparing scope reports.
29 A copy of Bonner's prepared statement is contained in the Appendix to this report at A-17.
30 These sensors are buried in the ground along the routes aliens use after entering the United States. They send radio signals to Sector Dispatch computers when they register movement in the area. Sector Dispatch then radios this information to agents in the field who then respond to the area to look for possible undocumented alien traffic.
31 Bonner also raised agent morale issues. He argued, for example, that the stationary positions along the border created in Operation Gatekeeper were dangerous for agents, and that the attrition rate among experienced agents was at an all-time high of 30 agents per month.
32 At the time of Bonner's testimony, the OIG had already assumed leadership of the investigation, a development that had been widely reported in the media.
33 Boubel was subsequently made a supervisor and surrendered his Union position.
34 An unofficial transcript of this program is contained in the Appendix to this report at A-21.
35 Each individual who was either a witness in this investigation or whose name appeared in a document that was entered into the OIG's document database was given a control number. In this report all anonymous witnesses, whether or not they testified pursuant to the OIG/Union agreement, will be referred to by the unique control number used by the OIG. Although the OIG interviewed a number of female agents, for simplicity's sake and to help preserve anonymity, all anonymous agents will be referred to as he, regardless of actual gender.
36 These hearings were held in San Diego. Copies of these two witnesses' prepared statements and their testimony are contained in the Appendix to this report at A-31.
37 This same Congressional Task Force visited INS facilities in Miami on June 10, 1995. On June 14, 1996, the OIG released a report that concluded that Miami INS officials had intentionally deceived Task Force members in a number of ways, including showing the delegation empty cells that were normally overcrowded, assigning additional inspectors to airport duty, and releasing prisoners who should have remained in custody.
38 He testified that he had been reprimanded for leaving his assigned position under these circumstances.
39 This agent claimed that he had personal knowledge of more than 1,000 aliens being returned to Mexico without the completion of required documentation.