WASHINGTON—Sixty-two former government officials submitted a brief to a California district court on May 13 in support of a lawsuit against President Donald Trump, who wants to use Defense Department funds to help build a wall on the southern border.
The brief is signed by a who’s-who of officials from the Obama era, including John Brennan, CIA director from 2013 to 2017; James Clapper, director of national intelligence from 2010 to 2017; John Kerry, secretary of state from 2013 to 2017; Susan Rice, U.N. ambassador from 2009 to 2013; Samantha Power, U.N. ambassador from 2013 to 2017; Janet Napolitano, secretary of homeland security from 2009 to 2013; Leon Panetta, secretary of defense from 2011 to 2013; and Chuck Hagel, secretary of defense from 2013 to 2015.
The 62 officials argue that the border crisis is a “nonexistent threat” and “a manufactured crisis that rests on falsehoods and fearmongering.”
“There is no factual basis for the declaration of a national emergency for the purpose of circumventing the appropriations process and reprogramming billions of dollars in funding to construct a wall at the southern border,” the officials state in the brief.
Trump declared a national emergency on Feb. 15, which allowed for the shift of $600 million from the Treasury Department and $6.1 billion from the military budget toward border-wall construction. The $6.1 billion from the Defense budget includes $2.5 billion reallocated from the counter drug activity purse and $3.6 billion from the military construction budget. Only the construction money is dependent on the emergency declaration.
“We’re going to confront the national security crisis on our southern border, and we’re going to do it one way or the other. We have to do it,” Trump said at the time. “We have tremendous amounts of drugs flowing into our country, much of it coming from the southern border.”
The House and Senate subsequently passed a privileged resolution to terminate the national emergency, which Trump vetoed on March 15.
A Numbers Game
In the brief, Brennan et al. argue that the number of illegal border crossings has been near historic lows.
Border Patrol apprehensions at the southern border declined dramatically when Trump took office, resulting in a 40-year low in fiscal 2017—which the brief states. The apprehension numbers increased by 30 percent from fiscal 2017 (303,916) to fiscal 2018 (396,579), which the brief calls a “modest increase.”
The brief does not mention that former Department of Homeland Security Kirstjen Nielsen told the House Homeland Security Committee on March 6, “At the current pace, we are on track to encounter close to 1 million illegal aliens at our southern border this year.”
Although the former officials say apprehension numbers are “near historic lows,” they omit the context around the population of the illegal aliens now entering the United States.
In the early to mid-2000s, Border Patrol apprehensions ranged from 900,000 to 1.6 million people annually.
But those were often the same people—single males from Mexico—and it was easy to return them, according to Brandon Judd, president of the National Border Patrol Council.
“We would arrest them, send them back across the border, and then they would just come back. I mean, I arrested the same group three times in one shift,” he told The Epoch Times on March 20.
“But now, that’s not what we’re dealing with. We’re on pace to have about 900,000 arrests, but that’s 900,000 people that we’re dealing with. Whereas back in the early-2000s, we were dealing with somewhere around 500,000, 600,000 people. We were just arresting the same person over and over and over again. So we’re dealing with something that’s just never been dealt with before. And if we don’t get the support from Congress, we’re going to fail. Period.”
However, Brennan, Clapper, Kerry, and others said the recent sharp increase in apprehensions “does not present a national emergency” because the bulk of the population increase consists of family units and unaccompanied children who are “forced” to cross illegally, as ports of entry are unable to handle large numbers every day and use a “metering” system to cap processing.
The brief does not mention that about 40 percent of Border Patrol agents are currently unable to secure the border because they are tied up with processing, transporting, and providing humanitarian assistance to the large groups of family units and unaccompanied minors crossing illegally. Agents are taking an average of 65 illegal immigrants to the hospital every day, according to testimony by Acting Homeland Security Secretary Kevin McAleenan during a House hearing on May 22.
Mexican cartels and smuggling networks are sending large groups of mostly Central Americans across the border to tie up Border Patrol resources, while simultaneously smuggling drugs and criminals across unpatrolled areas nearby.
Border Patrol encountered two large groups (each consisting of 100 or more illegal aliens) in fiscal 2017, and 13 in fiscal 2018. So far this fiscal year, more than 100 large groups have illegally crossed the border.
The former officials state in the brief that “there is no evidence of a terrorist or national security emergency at the southern border.”
The brief uses an NBC News report that said only six people who are in the terrorism database were apprehended on the southern border between October 2018 and March 2019. However, the brief did not mention the 3,000 “special-interest” aliens that Nielsen said were apprehended at the southwest border last year.
Special-interest aliens (SIAs) are labeled as such for their travel patterns and behavior. They hail from dozens of countries in the Middle East, South Asia, and North Africa, where terrorist groups operate.
“This does not mean that all SIAs are ‘terrorists,’ but rather that the travel and behavior of such individuals indicates a possible nexus to nefarious activity (including terrorism) and, at a minimum, provides indicators that necessitate heightened screening and further investigation,” DHS said in a statement on Jan. 7.
In the first five months of this fiscal year, at least 25,000 illegal aliens evaded capture by Border Patrol in the Rio Grande Valley, Texas.
“We actually don’t know who they are. So far, here in south Texas, we’ve apprehended folks from 44 different countries. These are from the Middle East, Southeast Asia, Yemen, Iraq, Pakistan, Iran, you name it,” said Raul Ortiz, then-deputy chief Border Patrol agent for the Rio Grande Valley sector.
Former Acting ICE Director Tom Homan said that if illegal aliens aren’t caught by Border Patrol, there’s no record of them even being in the country.
“And that’s what’s concerning. The whole world knows our southern border is in chaos, the whole world knows if you want to come to United States illegally, now’s the time to come because of what’s going on at the border,” Homan told The Epoch Times on May 24.
“Everybody keeps saying, ‘Well, this is not a really a crisis beyond a humanitarian.’ No, it is a crisis of national security proportions. Because our border’s vulnerable and it’s vulnerable to terrorists who want to try to come into this country.”
‘Wall Can’t Fix Trafficking’
In the 23-page brief, Brennan, Clapper, Kerry, and others also state that “there is no human or drug trafficking emergency that can be addressed by a wall at the southern border.”
The brief says most drugs come through ports of entry or via the postal system, which a wall would not stop.
Customs and Border Protection statistics account for the volume of drugs seized—which is predictably higher at ports of entry where single loads are generally larger and more detection equipment is available.
Border Patrol drug seizures between ports of entry in fiscal 2018 totaled almost 500,000 pounds along the whole southwest border—461,030 pounds of marijuana, 11,314 pounds of methamphetamine, 6,550 pounds of cocaine, 568 pounds of heroin, and 388 pounds of fentanyl (enough fentanyl to kill all Americans four times over, according to Nielsen).
In the Rio Grande City area of Texas, agents seized 42,000 pounds of narcotics in the first five months of this fiscal year.
However, “we’re not even probably catching about 10 percent of it,” Ortiz said.
That would mean 378,000 pounds of drugs have made it across into the Rio Grande City area between the ports of entry.
“The cartels are starting to push alien traffic out here [where] there’s nothing [but] a little, bitty village,” Ortiz said. “And why are they doing that? Not because it’s [in] close proximity to a community. No, because the cartels are using that as a diversion so they can tie up our hands so our agents can’t get to the narcotics or to smuggled alien traffic.”
Brennan and the other former officials state that most human trafficking victims in the United States are citizens. “And the three states with the highest per capita trafficking reporting rates are not even located along the southern border,” the brief states, citing a CNN report.
There is no mention in the brief of the more than 3,100 cases of fraudulent families that Homeland Security has detected in the last several months—including cases in which children are being rented to adults, who pose as a family unit for quick release.
For instance, on April 4, Border Patrol agents apprehended a Honduran male with a 1-year-old child. During questioning, the man admitted the child was not in fact his, according to Rio Grande Valley Border Patrol Chief Rodolfo Karisch in a congressional hearing.
In 2014, fewer than 1 percent of all men apprehended by Border Patrol in the Rio Grande Valley Sector had a child with them. That number now sits at 50 percent, according to Karisch.
McAleenan said at a recent congressional hearing that smugglers are using a loophole in U.S. law to drive people across the border.
“What’s happening primarily and what we saw, really starting early last year, was increased awareness that there’s a vulnerability in our legal system due to to the reinterpretation of the Flores Settlement—that if an adult arrives with a child, they have a likelihood of staying in the United States,” McAleenan said.
“And smugglers are capitalizing on that; they’re directly advertising that fact. … Smugglers are advertising, almost at a retail level, in communities [in Central America]. Social media has made that communication easier and faster and even more challenging for law enforcement to deal with.”
The brief by the officials also doesn’t mention the report by a former Homeland Security agent who worked in the child-trafficking unit, who said in January that about 10,000 children are smuggled into the United States every year to be sold as sex slaves.
“For a decade of [my] service, I was stationed at the border office in Calexico, California,” Timothy Ballard wrote in a Jan. 30 op-ed published on the Fox News website. “Based on my extensive experience fighting transnational crime along the southern border, I know that we should absolutely finish building the wall, for the sake of the children.”
Ballard is now founder and CEO of Operation Underground Railroad, an organization dedicated to rescuing children from sex trafficking.
Clapper, Brennan, and others said Trump’s emergency proclamation “will only exacerbate the humanitarian concerns that do exist at the southern border.”
The group says the metering policy at the ports of entry is used by the administration “to turn away the families fleeing extreme violence and persecution in their home countries.”
Evidence shows that most of the illegal immigrants entering the country are coming for jobs or family reunification, and almost 90 percent will not be found eligible for asylum. Most don’t turn up for their immigration court hearings.
In Yuma, which is the third-busiest sector in the nation for illegal crossings, only 6.4 percent of illegal aliens make political asylum claims at the border, according to Yuma Deputy Chief Patrol Agent Carl Landrum in a May 22 press release. But Border Patrol is so overwhelmed by the sheer numbers, they are forced to release family units as quickly as possible, to make room for the next influx.
The brief signed by the 62 former government officials was part of a lawsuit brought by the Sierra Club. On May 24, San Francisco District Judge Haywood S. Gilliam Jr. placed an injunction on the Trump administration using Defense Department funds for border fencing, saying “irreparable harm” would ensue if the administration moved forward before a full hearing takes place.