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 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.
"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.
 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.
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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.
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.
(Reporting by Julia Edwards; editing by Jason Szep and Ross Colvin)
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