Categories of Misconduct at CBP

This past December, the Government Accountability Office (GAO) issued a report entitled "Border Security: Additional Actions Needed to Strengthen CBP Efforts to Mitigate Risk of Employee Corruption and Misconduct".

In compiling the report, auditors focused on data provided by Customs and Border Protection (CBP) for the years 2005-2012. CBP is composed of two major divisions: the U.S. Border Patrol and the Office of Field Operations, which staffs all land, air, and sea ports of entry into the United States. Together, they constitute a force of over 50,000 employees, mostly patrol agents and inspectors who are responsible for enforcement of customs, immigration, agriculture, import-export, and even weapons laws at the borders of our country.

As the title of the audit report indicates, the data are separated into two broad categories of delinquency: those involving outright corruption by officers, often by accepting bribes to look the other way as criminal acts such as drug trafficking or alien smuggling take place; and non-corrupt misconduct ranging from minor infractions (e.g., losing one's badge) to more substantive offenses such as driving while intoxicated, domestic violence, filing false expense claims, etc.

For purposes of conducting the review, GAO auditors adopted the categories used by CBP in classifying delinquent behavior, as follows: "(1) non-mission-compromising misconduct, (2) mission-related misconduct, (3) corruption, and (4) mission-compromising corruption".

GAO auditors found that the overall level of misconduct for all categories consistently ranged at the level of 1 percent of the total workforce during the entire period, even though both the U.S. Border Patrol and the Office of Field Operations experienced spurts of growth in their respective workforces during the timeframe studied. This surprisingly low level is testament not only to the relative effectiveness of CBP's hiring, training, and integrity programs, but also to the dedication of its employees. It is a singular achievement, one of which they can be justly proud.

But I do have a bone to pick, with both CBP and GAO. In describing the first category of infractions ("non-mission-compromising misconduct"), the report states, "The first category is the only one that is unrelated to the execution of the CBP employee's official duties or authority, and the majority of the incidents of arrests for misconduct (2,153 out of 2,170) since fiscal year 2005 fall in this category. Examples include domestic violence and driving under the influence while off duty." (Emphasis added.)

It is difficult for me to conceive that domestic violence offenses do not compromise missions. Federal statute provides that no one convicted of any crime of domestic violence, including a misdemeanor, may possess a firearm. See 18 U.S.C. 922(g)(9).

I want to state emphatically that I am not wading into the ongoing gun control debate now being waged. The statute that I have cited was written into law in 1997 — 16 years ago — and what it means is that a federal law enforcement officer convicted of a crime of domestic violence cannot carry a weapon, on- or off-duty. In essence, he cannot perform his mission-related responsibilities, because wearing a firearm (as both Border Patrol agents and border inspectors are required to do) would constitute a federal felony offense.

Readers of this blog may observe that CBP officers convicted of DUI offenses may be similarly prevented from performing mission-critical responsibilities if their driver's licenses are suspended. True, but the distinction is that license suspensions are for finite periods, except in the most egregious circumstances (such as for vehicular manslaughter). The weapons ban cited above is forever.

Perhaps it's time for CBP to reconsider its definitional categories for misconduct where domestic violence is concerned. Nor should GAO have uncritically accepted that definition. As I have said before, words matter.