McSally bill may exempt Border Patrol from freedom of information laws

One of the foundations of good government is the ability of citizens to know what their representatives and officials are doing. That's why the Freedom of Information Act was passed, and why it remains a vital cornerstone that allows people to keep tabs on the activities of federal officials.

But, a hearing set for Wednesday may — inadvertently or on purpose — move a law forward that would exempt Customs and Border Protection from FOIA almost entirely, allowing the agency to keep data and records about its border enforcement activities under wraps.

Update: McSally strips BP freedom of information loophole from border bill

Freedom of information experts called the provision "incredibly awful" and "a horrible thing."

It would essentially allow Border Patrol and other immigration agencies to operate nearly as secret police, without any public accountability.

H.R. 3548 is on the markup agenda of the House Committee on Homeland Security. Among the members of that committee is U.S. Rep. Martha McSally, who has signed on as a co-sponsor of the bill.

The bill would grant broad leeway to CBP — including the Border Patrol — to avoid complying with numerous laws when operating on "covered federal land," defined as areas within 100 miles of our southern or northern border. The agency, part of the Department of Homeland Security, has nearly 50,000 sworn officers and agents and is one of the largest law enforcement agencies in the world.

In addition to exempting the sprawling agency from a host of environmental laws in order to ease construction of President Donald Trump's border wall, the bill would allow CBP to refuse to disclose information on most of its border enforcement activities.

Congressional sources said providing path for CBP to dodge FOIA disclosures was not the intent of the provision, but wouldn't detail any reasons for it being included in the bill. The wording of the law repeats past waivers granted by the secretary of Homeland Security, one said.

McSally did not respond to questions regarding the issue Tuesday afternoon. (See our update from Wednesday: McSally strips BP freedom of information loophole from border bill)

The legislation "is incredibly awful. It allows the federal government to work in secret within 100 miles of the border, which is north of Catalina," said David Cuillier, of the University of Arizona School of Journalism.

"Basically, the Border Patrol could do whatever it wants throughout Tucson and this legislation would prohibit anyone from the public to find out," said Cuillier, a nationally recognized expert on FOIA. "Is that the America we want to live in — where the government can act secretly doing whatever it wants with our tax dollars and our liberties at stake, and we don't ever find out?"

CBP would be able to ignore 36 federal laws if the measure is approved. Among the included exemptions buried in the bill is Section 120(c)(2)(W) — a waiver of FOIA for the agency.

From the American Society of News Editors:

These sections affect the CBP's authority to act in order to prevent "all unlawful entries into the United States, including entries by terrorist, unlawful aliens, instruments of terrorism, narcotics and other contraband through the southern border or northern border," including, specifically, activities involving "the motorized vehicles, foot patrols, and horseback to patrol the border area, apprehend illegal entrants and rescue individuals," as well as "the construction, installation, operation and maintenance of tactical infrastructure and border technology ..."

The authority is so broad that CBP and its officers are given exemptions from the requirements of 36 different federal laws, including but not limited to, the National Environment Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Fish and Wildlife Act, the Eagle Protection Act, the Native American Graves and Repatriation Act, AND "Subchapter 5, and chapter 7 of title 5, United States Code (commonly known as the 'Administrative Procedure Act')."

The federal FOIA is a subset of the Administrative Procedure Act; on paper, exempting CBP activities taken on covered federal land within 100 miles of the southern or northern border from the act could also exempt records of those activities from FOIA. It's unclear whether this reading is accurate, or intended, but unless someone asks, we might not know until it is too late. Unfortunately, there has been little to no stated opposition to this bill, so it could very well pass the House Committee on Wednesday, and later the entire House, unchecked.

The risk of leaving this stone unturned is clear: The public and press would be in the dark with regard to CBP activities near the border. We wouldn't have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall. The CBP would be able to run wild and without oversight for the most part.

"Under any circumstance it would be a horrible thing to withhold access to records of CBP activities within 100 miles of the border," said Dan Barr, attorney for the First Amendment Coalition of Arizona. "Information about arrests, detentions and use of force by the CBP should be publicly available. However, the need for CBP transparency becomes more vital as we spend billions of dollars to further secure our border, whether it will be constructing a new border wall or not."

Congressional sources have widely acknowledged CBP's lack of responsiveness, and there are some indications the provision could be removed during markup if committee members such as McSally determine it could be used to dodge disclosures.

The federal government's alphabet soup of border agencies — DHS, CBP, BP, ICE, AMO and others — are already notorious for stonewalling the release of information that taxpayers have every legal right to see. The national group Investigative Reporters and Editors gave the Border Patrol the dubious honor the the 2013 Golden Padlock Award, "recognizing a U.S. government agency or individual for unrelenting commitment to undermining the public's right to know."

Passage of H.R. 3548 would only give them more opportunities to operate in the dark.

Whether you support or oppose Trump's wall, strongly favor more stringent immigration enforcement or are adamantly opposed, not knowing if CBP is doing its job fairly and effectively should not be an option.