Biden Administration Puts the Due Process Cart Before Border Patrol Horses

Agents should not be subjected to prejudgment as political cover for failed immigration policies

By Andrew R. Arthur on September 29, 2021

I never assumed that, in my career, I would opine about horses. The disaster unfolding at the Southwest border, however, has prompted me to wade into unexpected waters, however, from drugs to the political makeup of south Texas (both just in the last week). Equine law enforcement is the latest novel topic, but the horses are not really the issue — the politics are, and in that realm, metaphorical horse byproducts are quite common, indeed.

Before I begin, however, let me note that just because those topics were unexpected, I know a lot about each. I have worked on political campaigns (for both parties) and talked to more drug dealers (in a professional capacity, of course) than anyone you will meet who’s not allowed to carry a gun on an airliner.

The same is true of horses. I hail from the lower middle-class environs of horse country, and came to know them well. Thanks to my interest, I was even honored to command the Royal Canadian Mounted Police’s “Musical Ride” at one drill.

Those experiences put me in good stead during the seven years I spent doing oversight of the Border Patrol, and most saliently its Horse Patrol Program.

To understand why the Border Patrol needs horses, you must go to the border, as I have repeatedly. “Homo sum, humani nihil a me alienum puto and all that, but the 1,954-mile Southwestern frontier is unbelievably long, diverse, and in most places, extremely rugged. Understanding it requires personal experience.

Although Southwest border infrastructure has improved immensely since the passage of the Secure Fence Act of 2006, most of the area is unimproved, and a lot of it will remain that way thanks to federal and state environmental protections. Raging rivers, winding streams, mountains and hilly outcrops, and wide-open desert are more the norm than the exception.

Distances are broad there, and temperatures fluctuate between hellish and frigid. Horses can withstand weather extremes, go for miles, and literally live off the land. As a bonus, they do little to disturb unique and sensitive natural habitats. And in a pinch, as big-city mounted units show, they are great for both day-to-day enforcement and crowd control.

Crowd control was desperately needed on the banks of the Rio Grande near the town of Del Rio, Texas, in the past few weeks, as some 30,000 migrants, mostly Haitian nationals, converged on the river at various fords between the town and neighboring Ciudad Acuna, in Mexico’s Coahuila state.

Of those, 15,000-plus were camped underneath the international bridge on the U.S. side, awaiting Border Patrol processing (and for most, release into the United States). The situation was extremely “fluid” as some passed back and forth between the two countries to obtain supplies that the federal government — for some inexcusable reason — did not provide.

“Carnival-type tickets” (as my colleague Todd Bensman aptly describes them) were handed out to new arrivals there to facilitate their processing, but the chaotic debacle there was anything but festive. “Del Rio” should be the subject of a federal investigation, and I trust in time (likely in the 118th Congress), somebody will get to the bottom of why, exactly, Border Patrol pleas for more resources in the area (going back to June) went unheeded, and the scene at the river devolved quickly into a disaster.

Of course, there were no outcries for that investigation in the wake of “Del Rio”. It was the horses and their agents who became targets for Washington’s fire.

Democratic members of Congress derided the use of mounted agents there as “[c]ruel, inhumane, and a violation of domestic and international law” and “a stain on our country”. Vice President Kamala Harris offered her thoughtful take on pictures of agents using horses at the border, sharing that she was “deeply troubled” and opining that “human beings should never be treated that way.”

There is no suggestion that any had been briefed on the situation in Del Rio or the actions of those agents before rushing to judgment.

In that vein, President Biden tossed in his two cents. He called those pictures “outrageous” (fair enough, but the word has several meanings), and then made the following vow on September 24:

I promise you, those people will pay. There will be an investigation, underway now, and there will be consequences. There will be consequences. ... It's an embarrassment, but beyond an embarrassment, it is dangerous. It’s wrong, it sends the wrong message around the world, it sends the wrong message at home. It's simply not who we are.

The “people” in that excerpt refers to agents, not migrants. That statement was well beyond the pale, for two reasons.

First, both Biden (Syracuse Univ. School of Law, ’68) and I are lawyers, and well versed in judicial concepts like “due process”. I learned about that principle, which forms the basis of our system of justice, from my old GW Law School criminal procedure professor, Jonathan Turley.

Here is his take on the president’s comments:

It was wrong for Biden to say what he did in promising punishment for agents before any investigation is complete. It sends a message to investigators about the expected conclusions of their work. It also suggests that a finding of no whipping or wrongdoing would contradict the President and would not be supported by the White House. That could present serious career issues for investigators. It is unfair to the agents. It is unfair to the investigators and it undermines the integrity of the investigation.

As a prosecutor, I knew how crucial it was to any investigation, let alone prosecution, not to make any statements that would imply prejudgment of any issue. It’s reversible error for any judge and should be. As president, Biden is judge, jury, and executioner when as it comes to the agents involved.

The second, related, reason that Biden’s statements were out of line is because he is the president, and ultimately responsible for the actions of all government officers, agents, and employees. Following the U.S. military’s withdrawal from Afghanistan in August, Biden channeled his inner Harry Truman and admitted: “I am president of the United States and the buck stops with me."

So why did Biden treat the horse incident at “Del Rio” as if he were a blameless, outside observer? Sometimes, certain things lead even the most hardened and dispassionate leader to cast aside the veil of objectivity, and in the heat of the moment express personal statements from the heart.

That wasn’t the case here, however. Biden is notoriously scripted (unlike his hot-blooded predecessor), and he made those statements at a scheduled press conference — he wasn’t ambushed by a reporter at an ice cream shop. He knew he would be asked about it, and was ready with a response.

So if Biden knew that he was imperiling a federal investigation, and prejudging agents over whom he has ultimate responsibility, why did he make those statements?

I eschew ascribing base motives to other’s actions, but the most likely reason was to deflect blame for the fact that his policies are the reason that 30,000 migrants ended up in Del Rio, and his response was why 15,000 of them ended up in a filthy refugee camp on the outskirts of an American town.

By any objective measure, the situation there when Biden took office was what Rodney Scott, the previous Border Patrol chief, described in a September 11 letter to Congress as “arguably the most effective border security in” U.S. history. Biden turned it into “Del Rio”, shorthand for a humanitarian, national security, and law enforcement disaster.

How? The president deliberately and ham-handedly wiped away successful Trump immigration policies that had brought that control to the border, and broke his pre-inauguration promise In December to set up “guardrails” to ensure that the situation got “better not worse” before reversing those policies.

Scott alleged that “inexperienced political employees” ignored the advice of career experts in creating the mess, but that makes Biden’s dereliction even more inexcusable. He is free to put ideologues and party lackeys at the National Council on the Arts or install them at the U.S. Institute of Peace if he wants, but its reckless for the president to place them where they set policy at the border.

The border is our first line of defense, and defense is what the Border Patrol provides. Agents stop drugs, search for terrorists, and enforce the immigration laws by arresting illegal migrants.

U.S. policy is for them to achieve “operational control” there, defined as “the prevention of all unlawful entries into the United States, including by ... unlawful aliens.” Then-Senator Biden voted for that policy (as I explained in August), and as a former defense attorney, he knew what it entailed. He asked to be president, but now is disclaiming any blame after getting the job.

Law enforcement isn’t always pretty. No one wants to see high-speed chases, perps in handcuffs, or aliens being grabbed by agents on horseback. The government, however, has broad authority to use force because sometimes force is required to enforce the law.

I know Border Patrol better than I know horses. No agent wants to use force, but sometimes they have no choice. When they do use force, however, agents should be entitled to the same due process rights even criminals caught in the act are guaranteed. Not to be subjected to prejudgment or used as political cover by politicos who have broken their promises and failed in their duties.