May 04, 2019

Warren, Udall, Harris & Blumenthal to DHS: Stop Unconstitutional Surveillance of Journalists, Activists, and Lawyers

Senators demand answers from Acting Secretary McAleenan about CBP’s program to target and monitor individuals reporting on or providing assistance to migrants at the border

Text of the Letter (PDF)

Washington, DC – United States Senators Elizabeth Warren (D-Mass.), Tom Udall (D-N.M.), Kamala D. Harris (D-Calif.) and Richard Blumenthal (D-Conn.) wrote to U.S. Department of Homeland Security (DHS) Acting Secretary Kevin K. McAleenan demanding answers on reports of targeted government surveillance of journalists, activists, and lawyers at the U.S.-Mexico border by Customs and Border Protection (CBP) – an attack on the First Amendment and a potential violation of the Privacy Act of 1974.

In early March, the Trump administration reportedly compiled a secret database of immigration advocates and journalists covering immigration issues, the majority of whom were U.S. citizens, who were then subjected to additional scrutiny by CBP when crossing the U.S.-Mexico border. Additionally, recently revealed documents show that the DHS Office of Intelligence and Analysis received and distributed information from a private intelligence firm that documented more than 6000 demonstrations across the country protesting DHS’s child separation policy.

“This kind of government surveillance, including of U.S. persons, is particularly troubling when it targets journalists and those providing legal services to migrants, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation,” the senators wrote. “Recent reports indicate there are ongoing efforts to expand the collection and retention of social media data under the pretense of enhancing ‘situational awareness’ and without appropriate limits consistent with the Constitution. This practice creates great risk of abuse of that information, such as using it to discourage advocacy contrary to the interests of the administration.”

In their letter, Udall, Warren, Harris, and Blumenthal, who all visited the southern border at the height of the family separation crisis engineered by the Trump administration last summer, raised serious concerns over how these alarming surveillance practices jeopardize constitutional rights protected by the First Amendment, including freedom of the press, speech, and association.

“The American people expect DHS to help keep our communities safe from violent attacks, not keep lists of journalists and attorneys to harass at legal ports of entry, or track and disseminate information about public protests of DHS child separations,” they continued. “Even the appearance of targeting on the basis of protected expression can have a severe chilling effect on protected speech and raises serious constitutional concerns.”

“The Administration’s surveillance practices and targeting of individuals providing legal services to migrants and journalists, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation, are beyond alarming and demand an immediate course correction,” the senators concluded.

The senators requested responses to a series of important questions and requests for documents by May 24, 2019, including: whether the administration’s surveillance activities were politically motivated; agency materials governing DHS conduct when creating records of U.S. citizens; and detailed information on the extent to which CBP or its contractors accessed non-public information on individuals.

Organizations like the American Immigration Lawyers Association (AILA) and the Center for Democracy and Technology have voiced concern over surveillance of lawyers, advocates and journalists who have opposed the administration’s immigration policies.

“The government’s targeting and monitoring of immigration attorneys will almost certainly deter and prevent attorneys from reaching their prospective clients seeking asylum. Legal representation in immigration proceedings is instrumental for those seeking protection from persecution and immigration attorneys must be permitted to represent clients without fear of governmental interference or retaliation,” said Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA).

“The Senators’ letter pulls together an eye-popping array of instances in which DHS targeted people who dissent from government immigration policy or who expose government abuse at the border.  A disturbing pattern emerges:  Is DHS using its enforcement powers to squelch advocacy of immigrants’ rights?" asked Greg Nojeim, Director of Freedom, Security and Technology Project at the Center for Democracy & Technology.