BOB GARFIELD: You regular listeners know that freedom of information, a particular passion of ours, has lately become an obsession. And it’s fixated on the veil of secrecy that shrouds Customs and Border Protection, the huge police force guarding our borders. We know we have fewer rights at the borders, but that's all we know. We don't know what rights we retain or how they’re attenuated by CBP policies, under the aegis of the Department of Homeland Security, because we don’t have access to that policy. All we have are countless stories, countless because we can’t get the data of dehumanizing detentions and intrusions at the border that would seem to be unconstitutional anywhere else.
BROOKE GLADSTONE: So we’re devoting this hour to the murk at the border, how we can penetrate it and why we ought to try. And since we don't have and can't get hard numbers, we’ll use stories. The first, the one that started us on this quest you may have heard before. It's from OTM producer Sarah Abdurrahman, who was headed back to New York from her cousin’s wedding near Toronto when she was detailed, along with a carload of family and friends for six hours, without explanation by US Border Patrol agents at Niagara Falls. Everyone in the car was a US citizen.
SARAH ABDURRAHMAN: Once we realized we wouldn't be leaving the border facility anytime soon, the giddiness we still had from the wedding weekend quickly disappeared.
SOFYAN AMRY: Heads started to, you know, slump between shoulders. All conversation ceased. I remember at one point trying to fall asleep, but I was just so, so, so, so cold, I c – I couldn’t do it.
SARAH ABDURRAHMAN: Sofyan Amry was one of the six people in our car.
SOFYAN AMRY: I felt like they were a bunch of frat boys, and we were a bunch of initiatives just sitting there, awaiting their judgment, ‘cause I remember they would snicker and kind of look at us and comment, and they would kind of, you know, whisper among themselves and laugh.
ABDULLA DARRAT: It was freezing.
SARAH ABDURRAHMAN: That’s Abdulla, my husband.
ABDULLA DARRAT: Everybody was like putting their arms in their shirt. And there’s points where my teeth were chattering.
JAMES LYLE: There's probably no form of Border Patrol abuse that’s better documented than that. People have reported being held in extreme cold, and they call it the icebox.
SARAH ABDURRAHMAN: James Lyle is an attorney at the ACLU of Arizona. He says, in addition to the icebox, people have reported physical and verbal abuse, as well as denial of food, water or medical care by Customs and Border Protection, or CBP, which is under the Department of Homeland Security.
JAMES LYLE: The accounts are so widespread and so consistent that it's very hard to see this as anything other than a systemic problem and not just a couple of bad apples here or there.
SARAH ABDURRAHMAN: Lyle told me the story of four-year-old Emily Ruiz, who was detained for 20 hours at Dulles Airport.
JAMES LYLE: She was crying hysterically, and agents refused to let her speak with her parents for over 14 hours. They kept her in a cold room, with no bed, blanket or pillow and didn't give her anything to eat, other than a cookie and some soda.
SARAH ABDURRAHMAN: Even though she was a US citizen, CBP ultimately deported the little girl. She returned to the US three weeks later and was diagnosed with posttraumatic stress disorder.
JAMES LYLE: The fact is it's not necessary to [LAUGHS] abuse citizens and permanent residents or anyone, to do the work of a Customs and Border Protection official. And yet, there aren't any meaningful mechanisms holding Customs and Border Protection officials in check, and so there's a real sense of impunity.
SARAH ABDURRAHMAN: Lyle says this is partially due to the sheer size of CBP, which has grown into the largest federal law enforcement agency in the country.
JAMES LYLE: With that growth, there was no accompanying rise in transparency, oversight, accountability that you would expect to see from any law enforcement agency, much less one that claims such broad authority. The picture that emerges is really of an agency that’s grown too much, too far, too fast and is, at times, operating really as an agency out of control.
SARAH ABDURRAHMAN: I tried asking the guy in charge, Supervisor McPherson, why we were held for so long. He said it wasn't my right to know. I asked him the names of the agents who interacted with us, and was once again told it wasn't my right to know.
Earlier this week, I called Richard Misztal, the Public Affairs Liaison at the Buffalo Service Port, and asked him if McPherson's response was in line with CBP policy.
RICHARD MISZTAL: You know, in a situation like that, normally we would provide the names of the officers but, in this instance, he did give you his name, so –
SARAH ABDURRAHMAN: Well, he didn't give me his name. I wrote it down because he was facing me and I could write it down. He wouldn’t give me his first name. When I asked for the names of the other agents, they turned around so I couldn't write their names down.
RICHARD MISZTAL: Mm-hmm.
SARAH ABDURRAHMAN: Is it against CBP policy for US citizens to have the names of the agents they interact with?
RICHARD MISZTAL: I would have to investigate that for you. I would – I wouldn’t want to speculate.
SARAH ABDURRAHMAN: So you don't know.
RICHARD MISZTAL: [PAUSE] I’d have to investigate that for you, and -
SARAH ABDURRAHMAN: Is it the CBP policy not to inform people of why they're being held for extended periods of time?
RICHARD MISZTAL: Each situation is different. To try to, to, to, to make a statement broad enough to cover all would, would be, you know, asinine. There’s no way that could be done.
SARAH ABDURRAHMAN: Later we learned that other friends that had been at the wedding in Toronto were [LAUGHS] also detained, also for six hours, at the Detroit border crossing. Khaled Ahmed and his wife were driving with their two small children, his brother and a family friend - again, all US citizens. They said their first interaction with the CBP agent signaled what was to come.
KHALED AHMED: You know, I was like, hi, how are you doing today? No response, a stern look from the beginning. Who’s Khaled? Are you Khaled? Yes, I’m Khaled. Who’s Leubab? Leubab, right here. Okay, which one is Muna? That’s Muna. At this point in time, my son, who had just turned three years old, was in the back seat, and he kind of popped his head out and he’s like, hi, my name is Fetthi. He just turned to him, he’s like, what, what did you say your name was, what’s your name, really aggressively, to this three-year-old kid.
SARAH ABDURRAHMAN: They were told to park and leave all their cell phones in the car, at which point his wife Alaa asked if anyone would be going through their phones because –
ALAA AHMED: I wear a headscarf, I have pictures on there that, if somebody is gonna search the phone, I need it to be a female.
KHALED AHMED: And the man said that nobody was gonna be checking our phones, so we went ahead and left our phones in the car.
ALAA AHMED: My phone doesn’t have a, a code, but Khaled’s does have a lock, so they brought it in and they told him, we need you to unlock your phone, we’re gonna search through it.
KHALED AHMED: It went from, we won't search your phones to, we’re gonna search your phone, confiscate it and not give it back to you. I got into an argument with the officer. I said, “Listen, all my work is on my phone. I really need it.” He got aggressive with me, he said, “Listen, you're not leaving with your phone today.”
SARAH ABDURRAHMAN: Khaled told me he put his foot down about his phone because he saw another friend who was detained that day do the same thing. When Khaled’s group arrived at the Detroit border crossing, they found Ahmad Kadura, another Toronto wedding guest and US citizen, already being detained with his family at the CBP facility.
AHMAD KADURA: I just kept on begging them, like, “You can’t take my phone. This is my work phone. I’m on call 24/7, so I have to have my phone.” And after begging them, he said we can come tomorrow to pick it up.
SARAH ABDURRAHMAN: ACLU attorney Catherine Crump says that the government can search people's electronic devices at the border, without any suspicion that they contain evidence of wrongdoing.
CATHERINE CRUMP: And, once the government has a copy of someone’s electronic information, it’s relatively easy for that to be shared among government agencies, and the policy even permits sharing with state and local governments and with foreign governments too.
SARAH ABDURRAHMAN: Back at Niagara Falls, we had our phones confiscated, as well, and my husband was asked to unlock his. The government says only around 15 of the 1.1 million people who enter the US each day have their electronic devices searched by Border Patrol agents. If that's true, our three cars may have accounted for almost all of CBP's device searches that day.
DHS has an Internal Office of Civil Rights and Civil Liberties, which Crump says encourages CBP agents to write an explanation of why a device search is taking place. But it’s not a requirement, though she thinks it should be.
CATHERINE CRUMP: Because anything you can do to make people create some record of why they’re conducting searches would help cut down on searches that are conducted for impermissible reasons, such as, for example, merely because of the racial or ethnic background of the people involved or because of their religious beliefs.
SARAH ABDURRAHMAN: When my husband Abdulla was taken to another room for interrogation by a DHS officer, the questions quickly focused on his religious beliefs.
ABDULLA DARRAT: He asks me if I’m Muslim, but he kind of does it in this weird way, like, he like, can I ask you, are you – what, um, eh, uh, are you Mus – are you – what, what religion are you, like that, you know.
Like he kind of like dances around it. And I was like, “Yes, I’m Muslim.” He said, “Are you practicing?” And I said, “Yes.” He said, “Where do you practice?” And I was immediately confused by that question because, I mean, Muslims don’t really belong to a church or a mosque or whatever. You just – I said, “I practice wherever.”
MUNIA JABBAR: We’ve noticed a pattern of CBP agents asking Muslim travelers really invasive and personal questions about their protected religious activity.
SARAH ABDURRAHMAN: Munia Jabbar, an attorney at the Council on American-Islamic Relations, says questions about religious behavior violate the Equal Protection Clause of the Constitution.
MUNIA JABBAR: You’re singling out people, based on their religion, and then subjecting them to longer detentions and to humiliating questioning about stuff that they're allowed to do legally, in fact, stuff that is part of the bedrock of our Bill of Rights.
SARAH ABDURRAHMAN: What about the people who say, okay well, so what, we inconvenience [LAUGHS] a few Muslims, we ask them some questions that might be uncomfortable or invasive, but whatever, if they’re not doing anything wrong, no big deal. In the meantime, we might potentially catch somebody who is actually a threat to this country, isn’t it worth it?
MUNIA JABBAR: No, because the questions are just so broad. I don't possibly see how those kinds of questions would actually help them flush out any kind of terrorism investigation. When you pull aside innocent people for questioning, there is a stigma that they have done something wrong, and that stigma is also harmful.
KHALED AHMED: I got called in at least five or six separate occasions. Every single time they called me in, they would search me -
SARAH ABDURRAHMAN: That’s Khaled.
KHALED AHMED: - aggressively search me, push my forehead up against the concrete wall, going in between my legs, digging in my private areas. And they’d send me back for 10 or 15 or 20 minutes and call me back again, and search me again.
SARAH ABDURRAHMAN: Did you ask them why they had to do a body search every time, I mean -
KHALED AHMED: I’d just laugh. I, I kept – the only way I knew how to deal is laugh. I just kept laughing. I was like
– “Do you have any weapons on you?” “No, sir. You just searched me and I went and sat back down in the same seat. I don't know where you think I could have gotten weapons from,” you know? At some point, to get over the depression of the situation, you just have to treat it as a joke.
MUNIA JABBAR: Some of the treatment, I think, can be fairly
dehumanizing. For example, when CBP cuffs a parent in front of their kids, that can be terrifying to families. And it seems really needlessly terrifying.
SARAH ABDURRAHMAN: And that's exactly what happened to Khaled, at the Detroit border.
KHALED AHMED: After we had been there about five and a half hours, a man came out, put handcuffs on me and took me to a back room that was basically a jail cell. They didn’t tell me what was going on. My only request was I just asked one of them, “Whenever you guys find out what’s going on, can you please just tell my family, can you just inform my family?”
SARAH ABDURRAHMAN: Not only did they not tell his family what was going on, they led them to think the worst. While Khaled was still in the jail cell, the rest of his group got their passports back and were told they could leave. Here's his wife Alaa.
ALAA AHMED: Khaled’s brother asked, you know, where’s Khaled. And I just told him, “Oh, I’m sure he’s coming out right now.” And then, when I've already walked away from the desk, the agent tells me, “Oh, he won’t be joining you guys.” I was like, [LAUGHS] “What?” You know, and I go up to the desk and like, “What do you mean?” He’s like, “Oh, there’s an agency coming to pick him up.” So I was like, “Well, what agency?” He’s like, “I can’t disclose that information with you.” I was like, “He’s my husband. You need to tell me where he is going. We waited here six hours. We’re American citizens. Don’t treat us like we’re criminals. Don’t treat us like we’ve done something wrong.” [CRYING] And he made it seem like it was the FBI coming to get him, like this was something serious. And then I just broke down.
SARAH ABDURRAHMAN: It turned out, Khaled had an unpaid ticket for having a crooked license plate, which he got back in 2006. The other agency coming to get him was Michigan State Police.
MUNIA JABBAR: I really don’t understand the rationale of terrifying and [LAUGHS] humiliating families in that manner with those kind of tactics.
SARAH ABDURRAHMAN: Munia Jabbar.
MUNIA JABBAR: CBP apparently has essentially a kind of customer service notice up in their facilities, but they're definitely not following through on that kind of customer service.
SARAH ABDURRAHMAN: I saw that customer service notice when I was being detained. It was a list of CBP's pledges to travelers entering the US. I read some of those out to my friends and family, to see how well they thought CBP did.
SARAH READING: “We pledge to cordially greet and welcome you to the United States.”
ABDULLA DARRAT: I mean, it was anything but cordial. It was definitely not a welcome. It was more like a, “You are not welcome.”
SARAH ABDURRAHMAN: “We pledge to treat you with courtesy, dignity and respect.”
SOFYAN AMRY: There was not a single courtesy given. Even the bathroom was an ordeal. It was an uphill battle, absolutely no dignity at all. We were antagonized from the start, from the cold air to the terrible seats, to the heightened tension and the fact that we – they were kind of laughing on the other end of the room, kind of looking over at us like we were huddled sheep for the slaughter.
KHALED AHMEDMAN: It was one of the lowest moments of dignity in my life.
SARAH ABDURRAHMAN: “We pledge to explain the CBP process to you.”
ABDULLA DARRAT: Never. Not once did anybody explain to us what was happening or what procedures were to be followed or anything.
SOFYAN AMRY: It was almost like a joke, like a Saturday Night Live sketch.
Like saying, “We pledge to put you in a black room,” and they put us in a white room, for example. They, they would just do literally the opposite of everything that they said.
SARAH ABDURRAHMAN: I repeatedly asked Richard Misztal, the one CBP official I managed to get on the line, why our detainment was so starkly different than the experience CBP promises travelers, and repeatedly got the same response.
RICHARD MISZTAL: The way that we would handle the situation, ma’am, and I know it’s gonna sound like a broken record here [LAUGHS] but is through DHS TRIP. DHS TRIP, what they’ll do is they’ll take all the information. It all goes to Headquarters. Headquarters looks at the information. They disseminate it down to the port level. The port level goes through, talks to all the key components that were involved with the case. They’ll write up a, a response to it, and the response will go to Headquarters and Headquarters will issue it to you.
JAMES LYLE: The complainant is unlikely to receive any information about the course of the investigation. They very regularly receive a cursory dismissal letter.
SARAH ABDURRAHMAN: ACLU Attorney James Lyall.
JAMES LYALL: Yeah, I heard one case of someone who submitted a complaint to the Office of Civil Rights and Civil Liberties, and they were referred to the TRIP program and then, in turn, the TRIP program, [LAUGHS] when it was done processing their information, referred them back to OCRCL, a kind of bureaucratic hot potato.
SARAH ABDURRAHMAN: [LAUGHS] Really?
JAMES LYALL: Yeah.
SARAH ABDURRAHMAN: Referred them back for what?
JAMES LYLE: Further investigation, supposedly.
SARAH ABDURRAHMAN: And remember Ahmad Kadura, whose phone was kept overnight? He's often experienced difficulty at border crossings, so he [LAUGHS] actually went through DHS TRIP and obtained a redress number, presumably to make travel easier in the future.
AHMAD KADURA: This past time, the first guy, when he takes your passports, I told him, “I have a redress number.” He’s like, “I don’t, I don’t need it, it’s not gonna make a difference.” I was held for seven hours, and that was the longest I have ever been held. And this is after I’ve gotten a redress number. I feel like I’m a second class citizen, where every time I’m trying to get into the country, [EXHALES AUDIBLY] you’re dehumanized. You get treated like an animal, pretty much.
ABDULLA DARRAT: They make you feel like a foreigner, in your own country. And that's - the psychology of it, you know, honestly, like, it’s still kind of throwing me off. They really mess with your head while you’re in there.
KHALED AHMEDMAN: To be in a situation where you’re a father and you can’t protect your children or do anything for them, it’s not easy to sit through, to feel so helpless.
SOFYAN AMRY: This is my home, so it was very much a betrayal, a cocktail of emotion - anger, sadness, depression, hopelessness, helplessness. And I remember anger slowly, slowly rising to the top, eclipsing all the other ones, ‘cause I just felt like I did not deserve this. I am not a criminal. I am not in possession of anything illegal. I am an American. Open the damn door and let me back home.
SARAH ABDURRAHMAN: For On the Media, I’m Sarah Abdurrahman.
BROOKE GLADSTONE: Sarah joins us in the studio now, hi, Sarah.
SARAH ABDURRAHMAN: Hi, Brooke.
BROOKE GLADSTONE: So you wanted to do an investigation because of what happened to you.
SARAH ABDURRAHMAN: Yeah, I genuinely came out of the experience, wondering what our rights are. I approached CBP and DHS Headquarters, asking very direct questions.
BROOKE GLADSTONE: Like what?
SARAH ABDURRAHMAN: Like, you know: Is there a time limit on how long someone can be detained? Do people have to unlock their phones, if asked? Do agents have to inform you why you're being detained? And I didn't even approach them as like an angry citizen. I approached them as a journalist, who had very straightforward questions, just about the process and the protocol. And what I discovered doing that is that the lack of transparency that I saw during our detainment just continued up and up and up the ranks, all the way to DC, where nobody was getting back to me about anything.
BROOKE GLADSTONE: How many times did you actually try?
SARAH ABDURRAHMAN: Oh, I tried a bunch of times. I don't even know. I mean, I’ve - I made phone calls, I sent emails. I tried to get DHS. I tried to get the Civil Liberties and Civil Rights Office. I tried to get CBP.
BROOKE GLADSTONE: The Department of Homeland Security's Civil Rights Unit did its own investigation of rights violations at the border. It pretty much exonerated the CBP and then classified [LAUGHING] its report. Now, the ACLU told you that when it finally got the report, the Civil Rights Office had redacted its reasons for clearing the CBP. This is just weird.
SARAH ABDURRAHMAN: Yeah, and everybody that I talked to gave me the impression that the Civil Rights and Civil Liberties Office is pretty much a toothless unit within the Department of Homeland Security. It’s strange to me that even those oversight agencies are opaque. It seems like, from top to bottom, people can just fall back on, you know, “It's sensitive information, we can’t tell you.” And the danger in that is they can say that about anything.
BROOKE GLADSTONE: You always felt yourself to be untouchable, even though you wear a headscarf and you're from a place where there's searing heat and endless numbers of guns.
SARAH ABDURRAHMAN: And oil.
BROOKE GLADSTONE: Yeah.
SARAH ABDURRAHMAN: Texas.
BROOKE GLADSTONE: Exactly.
SARAH ABDURRAHMAN: I'm from Texas. [LAUGHS]
That was one of the hardest things, when we were done with our detainment. I really just felt so stupid, like how naïve was I to think that when we came back into the country, all smiles and happy to be home, that this wouldn't happen? You know, you always hear this over and over and over again, you don't do anything wrong, you’ve got nothing to hide, you’re fine. And I really thought if there's due process, if there’s a legal system and I haven't done anything wrong, then nobody will treat me that way. And if somebody does treat me that way, there’s gonna be some sort of accountability later for that.
And what I'm discovering is there's nothing that any of us can do, absolutely nothing. Those guys at the front lines that have no oversight on what they're doing, they’re the invincible ones.
[MUSIC/MUSIC UP AND UNDER]
BOB GARFIELD: After Sarah’s experience last September, we called Lee Hamilton, former congressman and current member of the US Homeland Security Advisory Council, and he gave us this advice.
LEE HAMILTON: I would go to my representatives, I’d say, “Look, this is outrageous. I was treated poorly. I tried to get it corrected. They didn’t do anything about it. I want you to write a letter to the secretary of the DHS. I want you to make sure that in hearings the bureaucrats are asked about this and why it happened.”
BOB GARFIELD: So Saran went to the office of her local representative, Democrat Carolyn B. Maloney, and asked for help. Months later, it’s not clear how much Maloney, or anyone, can do.
REP. CAROLYN MALONEY: I’ve sent three letters, one to Customs and Border Protection and others to the Department of Homeland Security. Customs and Border Protection basically kicked it over to TRIP. My most recent letter to TRIP was sent on January 22nd.
SARAH ABDURRAHMAN: As a citizen and as a journalist, it’s incredibly frustrating, you know, to get such non-answers from the government. For you, is it equally frustrating, or is it sort of just a routine predictable part of the job?
REP. CAROLYN MALONEY: A routine part of the job. Sometimes, you know, you write a letter, they never get back. But then the person’s no longer detained, [LAUGHS] you know, so you feel that you did something to help them.
SARAH ABDURRAHMAN: This process that we’ve been going through with the Office now for the past several months, do you imagine that it’s going to yield any results, some sort of accountability?
REP. CAROLYN MALONEY: Sarah, no one in the cars was given his or her rights to due process of the law. And that is an issue, because due process requires that you know the charges against you.
SARAH ABDURRAHMAN: What kind of pressure can you put on them?
REP. CAROLYN MALONEY: Well, I think having and writing letter after letter after letter builds a case against their, their competency if they don’t respond appropriately.
SARAH ABDURRAHMAN: Thanks very much.
REP. CAROLYN MALONEY: Thank you very much.
SARAH ABDURRAHMAN: Carolyn Maloney represents New York’s 12th Congressional District, where I live.