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.