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Border Agents Can Now Get Classified Intelligence Information

Migrants and others denied U.S. entry will be unable to see the evidence against them.

An active-duty U.S. Army soldier scans for undocumented immigrants while on duty near the U.S.-Mexico border fence on September 10, 2019, in Penitas, Texas.

Pushing further toward its goal of “extreme vetting,” the Trump administration is creating a new center in suburban Virginia that will allow immigration agents to access, for the first time, the sprawling array of information scooped up by America’s intelligence agencies, from phone calls intercepted by the National Security Agency to material gathered by the CIA’s spies overseas to tips from informants in Central America.

This classified, potentially derogatory, information will eventually be used to screen everyone seeking to enter the United States, including foreign vacationers seeking travel visas, people applying for permanent residency or immigrants requesting asylum at the Mexican border.

Legal experts worry that immigration agents could potentially use this secret data to flag entire categories of people that fit “suspect” profiles and potentially bar them from entering the U.S., or prompt them to be tracked while they’re here. It could also be nearly impossible for those denied entry to challenge faulty information if wrongly accused, they say, since most of it is classified.

In an interview, the director of the new National Vetting Center, which is being overseen by U.S. Customs and Border Protection, was vague about the types of classified information that may be shared with immigration agencies but said the vetting center’s privacy and legal experts will make sure it conforms with the law.

“Right now, we’re still trying to get off the ground and are still focused on counterterrorism information which has already been used for vetting in the past,” said Monte Hawkins, a former National Security Council staffer who now works for CBP. “But as we fold in new types of derogatory information, yes, there’s potentially places where that type of information was never available before to make decisions.”

Hawkins, who helped write President Donald Trump’s February 2018 national security memo calling for the center’s creation, said that’s when the center’s lawyers will step in to “make sure” agents with agencies like U.S. Immigration and Customs Enforcement and CBP “are allowed to use that information or have the proper authority to do so.”

Spokespeople for the CIA, NSA and the Office of the Director of National Intelligence all declined to comment and referred questions back to the Department of Homeland Security, CBP’s parent agency, which did not respond to a request for comment.

The creation of the vetting center, particularly under the control of CBP and DHS, has alarmed civil rights and privacy experts as well as some who work in national security. They worry that CBP and ICE will use classified information to justify the surveillance of whole populations. And they worry that the center, once fully up and running, could allow the agencies to create their own de facto immigration policies through selective enforcement.

Rachel Levinson-Waldman, senior counsel for the Brennan Center’s Liberty and National Security Program, said the mere fact that the directive to build the center came from the same memo that called for the “Muslim travel ban” is cause for concern. “I think there’s a real worry about this new center expanding and growing,” she said. “Especially since it’s been created with the same discriminatory animus that’s behind extreme vetting and the Muslim ban. It’s not hard to see where this might end up.”

Levinson-Waldman and others also questioned putting classified intelligence information under the control of an agency like CBP, which has been criticized for a host of troubling behavior, including the targeting of activists, lawyers and journalists, and DHS, which has had three secretaries in three years and is currently waiting for Trump to appoint a fourth.

“You have an acting secretary who could be gone in an hour by tweet,” said Carrie Cordero, a senior fellow with the Washington-based bipartisan think tank Center for a New American Security. “The general counsel for DHS, who ultimately has the responsibility for making sure that oversight rules are followed, was just fired. So, there’s real questions as to what kind of management decisions are being made.”

Brian Katz, a former CIA analyst and now a fellow with the foreign policy think tank Center for Strategic and International Studies, said some members of the intelligence community are wary of DHS overseeing such a program because the agency is largely run by political appointees, who can be influenced by whatever agenda is being pushed by the president. “I think that’s particularly acute in this administration given the policies that DHS leadership has either been advocating or executing,” he said.

Both DHS and CBP, as well as ICE, have been scrutinized by a number of media outlets for their increasing reliance on algorithm-driven analytics and big data mining for immigration enforcement.

In August, ProPublica wrote about a 36-year-old Salvadoran man seeking asylum who was separated from his two children and thrown in jail for six months based on faulty gang intelligence provided by a State Department-funded fusion center called the Grupo Conjunto de Inteligencia Fronteriza, or GCIF. The center, which gathers information provided by police and the military in several countries, including El Salvador, shared the intelligence with CBP agents who were vetting asylum seekers at the border. The man’s attorney only learned of the existence of the fusion center after several months of litigation. But the exact nature of the faulty evidence provided by GCIF — or where it came from — has never been revealed because the government maintains that it is classified.

The case is exceptional because a team of high-profile law firms volunteered to litigate the complicated asylum case, which forced the government to provide at least some answers.

In the future, the new vetting center also could be used by CBP to vet asylum-seekers at the border, disguising even further the source of any faulty information.

“They’ll have no idea where the information is coming from,” Levinson-Waldman said of individuals trying to appeal their cases. “And this new vetting center will be artificially invested with this patina of accuracy that it may or may not deserve.”

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