CBP Is Asking The National Archives For Permission To Destroy Misconduct Records

from the FILE-NOT-FOUND dept

The CBP and ICE likely have loads of misconduct records. Not that they mean much. These records are compiled and stashed someplace where it's inconvenient to find them for FOIA requesters. No one at the CBP or the DHS seems to have much interest in punishing misconduct, much less investigating it, so the records are far from complete and tend to be rubberstamped with EXONERATED.

The records do exist and the public should be able to access them. But DHS agencies do everything they can to keep these records and the public separated. Responses are dragged out to the point of litigation and then the litigation gets dragged out for as long as possible in hopes of deterring not only the requester suing, but others who might think about asking the agency for records.

The CBP wants to make its refusal to part with misconduct records a feature, rather than an all-too-common federal agency bug. It has asked the National Archive to treat many of its misconduct records as "temporary," giving it permission to discard these as soon as possible rather than having them preserved for posterity.

The Border Patrol’s proposal to the National Archives, which makes decisions about the retention of U.S. government documents, would designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department. These records include reports on concluded investigations, sworn witness statements, and transcripts of interviews — material that constitutes invaluable testimony of CBP’s conduct. The proposal would also mark as temporary internal records concerning administrative and criminal investigations of CBP agents, as well as records collected by CBP in connection to the Prison Rape Elimination Act, or PREA.

If granted this request, the CBP could start shredding some records in as little as four years. Others would have to be retained for 25 years, but the CBP would have no obligation to turn records over to the Archives, where they would become part of the agency's permanent record.

History isn't always written by the winners. Sometimes it's written by those who can find a way to control the narrative in perpetuity. The record of the CBP's wrongs will be allowed to vanish into the ether. With a four-year plan for some documents, the CBP has a shot at destroying records before requesters know they exist or before litigation commences.

The problem here is that the National Archives has already allowed ICE to selectively edit its history, which the CBP is hoping will pave the way for its history-erasing proposal to be accepted by the federal government's historians.

In their review of CBP’s proposal, National Archives officials referred to the designation of ICE’s abuse complaints records as temporary to justify marking CBP’s complaints records the same way. The officials argued that “these records do not have value beyond their functional use for tracking complaints and ensuring fulfillment of obligations.”

And the CBP isn't the only problem here. Somehow the National Archives has convinced itself that a running record of civil liberty abuses and other misconduct isn't historically significant enough to preserve.

None of this may ultimately matter. The National Archives has been pretty much ignored by multiple administrations. It has been gradually stripped of funding as the amount of documents created by the government has increased. As the Intercept's article notes, it's been years since Congress has shown any interest in preserving the preservers. No hearings have been held and no effort made to shore up an entity swamped with other agencies' paperwork.

If Congress won't act, it's aiding and abetting in the destruction of historically significant records. It's allowing federal agencies to whitewash their abusive pasts. This shouldn't be acceptable but somehow the National Archives has become less than an afterthought in Washington. Without more oversight, it's just going to become the Ministry of Truth, housing only records agencies feel show them in the best light.

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Filed Under: border patrol, cbp, dhs, ice, misconduct, national archive, records, transparency


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  • icon
    Bloof (profile), 27 Oct 2020 @ 4:42am

    As countless corrupt regimes have shown, when you delete the records of misconduct, it makes it harder for people who actually care about the law to conduct a proper investigation down the line.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Oct 2020 @ 5:21am

      Re:

      At this point, it's not important. CPB = guilty of misconduct. It's pretty much inherent in the agency. Goes for ICE as well.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Oct 2020 @ 11:38am

      'Why else did you think we did that?'

      Pretty sure that would be considered a feature rather than a bug, though more likely it's simply the intended goal.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2020 @ 7:15am

    At this point, I am a bit surprised they are even asking.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 27 Oct 2020 @ 7:29am

    Well, it's like a Supreme Court nomination move

    Get permission to destroy misconduct records now, and you hamper the following administrations' intent to deal with serially abusive police officers and departments for decades since it makes it so much easier for them to duck under the radar when their slates are not just declared clean but actually wiped clean.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2020 @ 7:43am

    Would the court records of this situation also be destroyed if they win .. just list every record in detail of the misconduct records court records are forever

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2020 @ 8:09am

    Isn’t this the same administration that fights against the removal of “confederate “ history? I guess Thule of history matters.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Oct 2020 @ 8:57am

      Re:

      'We must protect statues honoring absolute scum who fought to preserve the atrocity that is slavery, lest they be torn down and history forgotten! Now, about scrubbing those misconduct records of people living right now...'

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Oct 2020 @ 9:50pm

        Re: Re:

        Neither should be destroyed.

        History is history regardless of how it portrays you or your ancestors.

        If you don't like the portrayal of you, maybe you should clean up your own act. If you don't like the portrayal of your ancestors, maybe you should condemn their actions, and use that history to show how different you really are.

        Destroying the evidence doesn't remove the hatred others have for you. If anything the act itself is just as damning as the destroyed evidence. If not more so by being evidence of guilt.

        Society doesn't have to like you, but you can make them more likely to do so by engaging in behavior that society approves of.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 28 Oct 2020 @ 3:28am

          Re: Re: Re:

          "History is history regardless of how it portrays you or your ancestors."

          Yeah, which is why Germany has a lot of museums depicting the history of the reich but not one single statue of Himmler or Goering still remaining in public plazas.

          It does not send a good message of "cleaning up your act" or "condemning" the actions of your horrifying monster of an ancestor if you insist his statue has to be standing in a public park so every black person walking through it can feast their eyes on the sight of a confederate defender of slavery being glorified in 2020.

          This isn't rocket science. If there's a statue of a man defending slavery then you remove that statue and sell it to a private collector or a museum, you don't leave it to hold a place of honor in your city.

          And it doesn't matter if that general was a man of honor, integrity and courage - because the only thing that says is that lamentably the forces of darkness had a competent minion among them.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Oct 2020 @ 8:29am

          Re: Re: Re:

          Statues built in the 60s are not history of the civil war. We have Museums and Libraries dedicated to preserving history, and they do it well.

          reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 28 Oct 2020 @ 3:22am

      Re:

      "Isn’t this the same administration that fights against the removal of “confederate “ history?"

      Removing statues of slave owners and the staunch defenders of slavery from the public square isn't exactly destroying history.

      A far more accurate representation of history revisionism would be the school textbooks still in US schools which, if they mention slavery at all, either slide across it in a hurry or try to portray it in the form of touching mythical anecdotes about how benevolent the plantation owners were.

      Every american living today has been presented with "history" washed clean of all the ugly stains. How many know that Lincoln himself thought a black man was worth 3/5 of an actual person?
      That Washington held slaves for all his life? That Jeffersson abused a 14 year old slave, fathering six children on her?

      How many people know about the Tulsa massacre? About the hundreds of equally severe massacres performed by white americans on black ones?

      The information age is revealing just how often this sort of this shit really happens...and to a lot of americans that now comes as a complete surprise because they've all grown up "knowing" about the history of the "greatest nation" where nothing bad ever happens and the heroes of yore are washed clean of all the ugly stains.

      The irony is perhaps that those most outspoken about "preserving" their history in the US tend to be those obsessed with the packet of lies and omissions which tries to cover the Confederacy, of all things, with a veneer of respectability. No one in Germany glorifies their "Wehrmacht" grandparents, yet a lot of southerners still venerate their confederate soldier ancestors. In utter ignorance what those ancestors actually fought for.

      Yeah, the current administration does indeed want the statues of those war criminals, slave holders and traitors to remain glorified - and they don't have the excuse of ignorance either.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Oct 2020 @ 8:58am

    A telling argument

    Destroying misconduct records by claiming that they have no historical relevance only really makes sense if you don't consider mass corruption and abuse of power in government agencies something noteworthy and worth remembering, so as arguments goes that one's a pretty damning one.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 27 Oct 2020 @ 10:54am

    Ever.

    Live in a town, that has this small group of adults who DONT watch over their OWN kids?
    They dont care what they do or how.
    But, if one gets in trouble they are THERE with the lawyer to protect the kid?
    Boys will be boys.

    Now how many NEW police agencies have been created in 20 years?
    What was Their jobs to be?
    Which one of these, has been put in charge of all the rest of our agencies?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 27 Oct 2020 @ 11:48am

    I'm not sure why they don't just destroy the misconduct records, write it up as misconduct and destroy that record. Problem solved! What misconduct?

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 27 Oct 2020 @ 1:17pm

    When the group is corrupt, the records protect the innocent.

    The Paul Verhoeven film Zwartboek featured that rare figure, a sympathetic SS officer, Hauptsturmführer Ludwig Müntze is really trying to govern the Hague with the intent to minimize suffering and keep a fair peace during the German occupation.

    On brand with the fate of all good cops, Müntze is betrayed and killed by a corrupt colleague.

    But this is a point of having complete and accessible records of misconduct, as it protects the innocent and well intended when it is decided by the community the entire institution is corrupt. Nazi hunters go after high-ranking Nazis. Period. It's nice if they can be pinned to specific wrongdoing, but even proximity to wrongdoing is enough to get them imprisoned, or assassinated by the Mossad.

    The CBP is ultimately setting themselves up for this in wanting to bury their past misconduct. When the hunters come, they'll assume they all were cruel and malicious and assume there was not a Müntze among them.

    reply to this | link to this | view in chronology ]


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