The Homeland Security Department has abused its power to unearth information about a detractor and sought to prevent the release of a report criticizing it for mismanagement of one of President Trump’s most high-profile initiatives, according to the agency’s watchdog.
The effort to quash a report from the DHS inspector general follows a pattern of the administration failing to comply or assist with oversight efforts. Previous examples have stemmed from agency officials declining to provide information to the Government Accountability Office. In the most recent case, the DHS IG said it has wrapped up an investigation into the Trump administration's rollout of its initial travel ban in January, but the department is dragging its feet to determine what parts of the report can be publicly released.
The auditors submitted their 87-page report to DHS in October, which included interviews with 160 officials and a review of 48,000 documents. Department management has not yet said what parts of the report are subject to attorney-client privilege, and is also considering what parts to exclude as part of its deliberative process. DHS has told the IG it cannot yet even estimate a timeframe for making those decisions.
“I am very troubled by this development,” wrote John Roth, the inspector general, in a letter to three Democratic senators and dozens of House members.
Roth said he was particularly concerned with the possible use of the deliberative process exception, which he noted was typically reserved for public records requests and had never been invoked by the department during his tenure.
“Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office's ability to keep ‘Congress fully and currently informed about problems and deficiencies’ of the department, as required by the Inspector General Act,” Roth said. “I am also unaware of other inspectors general who have been prevented from issuing reports on such a basis.”
As to the substance of the report, Roth said his team has found that Customs and Border Protection violated at least two court orders when enforcing Trump’s ban. Agencies engaged in a chaotic implementation process in January when leaders were caught off guard and employees lacked clear guidance on how to carry out the initial order. Both that and subsequent March orders were quickly blocked by federal judges who said they were unconstitutional.
The IG’s report confirmed that CBP “had virtually no warning that the EO was to be issued or of the scope of the order, and was caught by surprise.” Leadership was unclear on which groups the ban applied to, including lawful permanent residents. This led to CBP’s inability to issue clarifying guidance and delays at ports of entry.
“The bulk” of travelers from banned countries ultimately received travel waivers, the IG said, and no widespread cases of abuse by CBP officers were uncovered. The extra screening measures put in place by Trump’s executive order did not uncover any entrants with links to terrorism. CBP largely complied with court orders at ports of entry, though in some cases found out about the temporary restraining orders through watching television—rather than formal guidance—so they did not immediately cease blocking travelers from entering.
The major court-order violations occurred in foreign countries with people bound for the United States, the IG said. For several days after multiple courts blocked the executive orders, CBP continued issuing “no board” instructions to all airlines for certain flights. For at least one set of the guidance to airlines, all except one—Lufthansa—complied. The IG had “serious concerns” with CBP issuing the instructions despite the court orders.
The IG could not share further details about its findings or the evidence it used to make its determinations, citing the department’s refusal to sign off on the report’s issuance.
Tyler Houlton, a DHS spokesman, objected to the findings of a disorderly implementation of Trump’s order.
“The department’s many officials conducted themselves professionally, and in a legal manner, as they implemented an executive order issued by the president,” Houlton said. He added it should “come as no surprise” that materials contained in the IG’s report are protected by privileges given the “large number” of lawsuits and court orders that shaped the EO’s implementation.
Sens. Tammy Duckworth and Dick Durbin, both Illinois Democrats who received Roth’s letter, promised “repercussions in Congress” if the Trump administration attempts to bury the report.
“We know that CBP officers have a difficult job—but when the president failed to provide even the most basic guidance or warning regarding his discriminatory and unconstitutional Muslim Ban, he clearly didn’t make it any easier,” the senators said in a joint statement. “It’s disappointing that the DHS inspector general found that CBP violated two separate federal court orders during the chaotic implementation of this ill-conceived executive order, but it is frankly unacceptable that the Trump administration now appears to be hiding that information not just from Congress, but from the public as well.”
Another report from Roth’s office this week found CBP was guilty of abusing its power earlier this year when it issued a summons to Twitter demanding information on an account with the handle @Alt_USCIS, referring to U.S. Customs and Immigration Services. CBP had requested data associated with the account’s username, account login, phone numbers, mailing addresses and IP addresses.
The IG had previously established that the @ALT_USCIS account, which has more than 200,000 followers and is one of many such “alt” accounts that has popped up during the Trump administration, was not releasing any classified information. When announcing their investigation the auditors said they would not investigate “any alleged misconduct” on behalf of the user the agency suspected of being a CBP employee. Instead, they would examine whether CBP abused its authority in demanding identifying records from Twitter, as well as “potential broader misuse of summons authority at the Department and/or its components.”
Twitter filed a lawsuit against DHS and individual officials including then-Homeland Security Secretary John Kelly, but dropped the case less than 24 hours later after CBP revoked its summons.
Federal statute allows CBP to issue summons to third parties to obtain information regarding the “importation of merchandise or the assessment and collection of customs duties,” which the IG said was “unrelated” to its request regarding the @Alt_USCIS account. In fact, the auditors found CBP was issuing summonses in violation of its authority in “a wide range of cases.”
CBP agreed with the IG’s findings and promised to clarify its policy on using its summons authority and train its employees accordingly.