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Note: This story is more than 5 years old.

Despite risks, U.S. Border Patrol tried to shorten polygraph tests for staff

WASHINGTON — Gil Kerlikowske, the head of U.S. Customs and Border Patrol, vowed at his Senate confirmation hearing in January 2014 to strengthen the integrity of the nation’s largest law enforcement force amid persistent complaints of corruption and abuse within its ranks.

Nearly two years on, he can point to several significant achievements, notably expanding the investigative authority of the agency's internal affairs unit and giving all agents new training on use of force to reduce the number of deadly incidents that have tarred its reputation.

Some civil rights groups acknowledge the changes. But they complain these steps have yet to lead to adequate prosecutions of officers for misconduct or more transparency in how the agency handles, and resolves, criminal cases against its employees.

Reuters interviews with current and former CBP employees and congressional staff have found the agency has yet to implement certain recommendations to improve accountability, and it has quietly objected to a proposed reform that would give Congress oversight on how it handles complaints of misconduct.

The agency has also proposed shortening congressionally-mandated polygraph tests for new agents, which has not been previously reported. The difficulty of the tests and high failure rates have made it hard for the CBP to hire fast enough. Some new recruits are caught lying about drug abuse or affiliation with drug cartels, according to those who have seen test results.

CBP officials told Reuters shortening the test would help the agency meet its ambitious hiring goals, but some polygraph experts said this would have meant removing questions, which would have weakened the tests and invalidated the results. An oversight agency denied the CBP request.

When he took office, Kerlikowske, President Barack Obama's former "drug czar,” outlined an ambitious agenda to weed out corrupt agents and address a series of damning reports on the agency's use of force. The Southern Border Communities Coalition, a rights group, has compiled media reports of 40 deaths between January 2010 and Sept. 1, 2015. One agent has been prosecuted.

Some supporters say Kerlikowske, who gained a reputation as a man who could turn around law enforcement organizations after nine years as police chief in Seattle, has made impressive strides.

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"He's got a lot on his plate. He's trying to prioritize everything," said former Secret Service Director John MaGaw, a member of an integrity advisory panel set up by Kerlikowske.

Kerlikowske has rewritten the CBP's use of force rulebook to prohibit the shooting of suspects fleeing the scene who do not pose a threat to themselves or others. In the year since the new policy has been in effect, use of force overall is down from 1,037 to 768 incidents. Firearm-related incidents, however, are only down by one, from 29 to 28.

Under Kerlikowske, the CBP has also assumed direct control of internal criminal investigations into misconduct by its employees. Previously these were handled by other agencies, like the Federal Bureau of Investigation. But the CBP has yet to refer any use of force cases for prosecution.

"Our sense is that there have been improvements, but from a very low baseline. And the transparency problems of both the past and the present make it very difficult to gauge where exactly the agency is now," said Chris Rickerd, policy counsel to the American Civil Liberties Union.

Shorter polygraph tests

CBP’s struggle to reform comes as it continues to grow: the Department of Homeland Security has requested $13.5 billion for the CBP from Congress in fiscal 2016 and plans to hire nearly 1,950 employees in the next year. Since Obama became president in 2008, its staff numbers have tripled, to 60,000.

To screen new hires, CBP uses a polygraph test mandated by a 2010 law aimed at blunting the infiltration of the agency by drug cartels. Officers have been paid cash bribes and given sexual favors in exchange for allowing gangs to use their lanes at checkpoints to smuggle drugs and people across the U.S.-Mexico border, say current and former DHS officials.

The CBP would not say how many applicants currently fail polygraphs, but initial pilot tests found about 60 percent of applicants who passed the agency’s background checks failed a polygraph, then CBP internal affairs chief Jim Tomsheck testified to Congress in 2010.

In February, CBP officials tried to make changes to the test that were rejected by government oversight agencies for not meeting standards for law enforcement screenings, although what exactly they tried to do is disputed.

Former CBP internal affairs chief Tomsheck told Reuters he was aware of two specific questions that CBP had been trying to remove: “Did you lie about anything on your application?” and another related to handling classified information critical to national security.

Tomsheck retired under pressure in 2014 and is a critic of the agency's leadership.

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Four CBP officials acknowledged to Reuters the agency did try to shorten the time to complete the test, which can take up to 10 hours to finish, but denied they had tried to eliminate specific questions. While the officials would not say how they had planned to shorten the test, they said the goal had been to enable each polygraph administrator to test more than one applicant per day.

The National Center for Credibility Assessment, one of the federal agencies which turned down the CBP request, said it had advised the agency to adhere to "established federal standards" for law enforcement exams.

Former Secret Service polygrapher Gerry Cavis, who administered exams from 1986-1994, said it was not unusual for the tests to be modified, especially as American society changed and certain behaviors like homosexuality or the use of certain drugs such as cocaine and marijuana became more acceptable.

But Cavis said there are certain standards that all federal law enforcement agencies must adhere to. The fact that the National Center for Credibility Assessment had rejected the CBP's request suggested the agency had not met that standard, he said.

Pushback on bill

 Within hours of Kerlikowske announcing new restrictions on shooting fleeing suspects in May 2014, Jose Luis Arambula was shot nine times while fleeing unarmed from an agent in Arizona. The Border Patrol agent who killed him said Arambula was attempting to commit or flee from a felony.

Arambula's mother says the CBP informed her in February this year that they were not pursuing an investigation against the agent. The CBP would not say why it declined to pursue charge as the case is now the subject of a civil suit.

A bill now under consideration would require the CBP to report to Congress all complaints against officers, including use of force incidents like the Arambula case. The requirement is unusual as no other federal law enforcement agency is required to do this.

“If you make a complaint against an officer at CBP, it kind of goes into a black hole and you never know if anything was done about your complaint,” said a House Homeland Security Committee aide.

Some emails seen by Reuters between the agency and the House Homeland Security Committee show CBP has objected to reporting any complaints - from sexual assault to unlawful detention - and their outcomes to Congress.

In one email, dated May 14, 2015, a CBP official requested language be deleted from the bill that would require the agency to provide “written notification ... of the status or outcome” on complaints against officers, including deadly use of force.

A CBP spokeswoman, Jenny Burke, said the agency does not comment on pending legislation.

Integrity panel

Kerlikowske set up an integrity advisory panel comprised of former law enforcement agency chiefs to recommend changes to the way the agency handles use of force and corruption cases. One of its principal recommendations, made in June this year, was to boost the number of internal investigators, to 550 from 120.

Kerlikowske said in an interview he was still reviewing that recommendation. His immediate focus though was to help the current group of investigators understand their new authority to hold agents criminally accountable.

"It's quite obvious we will need significantly more given the size of the organization, and we're working on a plan as to how we would do that," he said. But, he told the advisory panel in September, "you have to crawl before you can walk."

The investigators have yet to send any use of force cases to the Justice Department for prosecution since acquiring their new powers in September 2014, an official in the internal affairs unit said.

That's despite the fact that the DHS inspector general, who has first say in investigating complaints, has referred 296 criminal cases to the unit for investigation in that period, according to data provided to Reuters by the CBP.

Kerlikowske said he wanted to halve the time it took investigate incidents involving use of force, but such cases were often prolonged by parallel state and local authorities investigations. Another official said these cases could take up to three years to resolve.

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Civil rights groups are impatient and want Kerlikowske to act with more urgency and boldness. "A properly staffed, responsive and transparent internal affairs unit is long overdue," said ACLU's Rickerd.

The CBP chief said he is planning to become more aggressive. One tactic he is considering: launching sting operations to catch corrupt employees.

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1 comment on this story

Dec 16, 2015, 11:47 am
-0 +0

Good on the CBP of trying to reduce the use of a tool that isn’t valid. As published by the American Psychological Association in 2004 “Most psychologists and other scientists agree that there is little basis for the validity of polygraph tests. Courts, including the United States Supreme Court (cf. U.S. v. Scheffer, 1998 in which Dr.‘s Saxe’s research on polygraph fallibility was cited), have repeatedly rejected the use of polygraph evidence because of its inherent unreliability.”

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