Feds’ harassment of journalists threatens coverage at the border

By Bruce D. Brown and Simon Kilmurry

Bruce D. Brown is executive director of the Washington, D.C.-based Reporters Committee for Freedom of the Press, bbrown@rcfp.org. Simon Kilmurry is executive director of the International Documentary Association, in Los Angeles, simon@documentary.org. They wrote this commentary for CALmatters.

In January, the Reporters Committee for Freedom of the Press and the International Documentary Association started hearing worrying reports from journalists and documentarians covering developments related to migrants arriving at the U.S.-Mexico border from Central America.

The journalists and documentarians were being hassled by border agents and immigration investigators in the U.S. and denied entry back into Mexico to continue their coverage, with vague indications that the denial was at the behest of the “Americans.”

It seemed like the Department of Homeland Security and its agents may have been deliberately targeting journalists and documentarians because of their work. We didn’t want to be paranoid, but we were concerned that this wasn’t a coincidence.

As it turns out, that paranoia was warranted.

Less than two months later in early March, NBC 7 in San Diego reported that the U.S. government has been tracking journalists reporting from the border in a secret database maintained by Customs and Border Protection.

An anonymous Department of Homeland Security source provided NBC 7 with screenshots of the database, images which also suggest that the intelligence effort is being coordinated with Mexican authorities.

The mere existence of this database, which includes in it several photojournalists and documentarians, raises serious questions about whether Customs and Border Protection is violating constitutional protections for the press.

It also poses unique concerns for the public, which relies on photojournalists and documentarians for visual coverage of newsworthy events.

It is no coincidence that growing momentum behind the civil rights movement in the 1950s coincided with advances in both television news and the mass adoption of television sets in American homes.

Landmark civil rights reforms in the 1950s and 1960s could easily have stalled without the images of burning buses, firehose and dog attacks, police beatings, and other acts that exposed the cruelty and hatred of segregation.

As if the mere existence of the database wasn’t alarming enough, its title as shown in the leaked documents, “Suspected Organizers, Coordinators, Instigators, and Media,” is worrisome if the government is lumping in journalists with people suspected of engaging in criminal activity.

Targeting and questioning journalists about their work for law enforcement purposes — and sharing any responses with intelligence agencies and foreign governments — threatens to commandeer the press as an investigative arm of the government.

Customs and Border Protection and Immigration and Customs Enforcement have enormous discretion both at the border and within a significant portion of the U.S. They can search and seize property without a warrant, and can do so anywhere up to 100 miles into the U.S. from every border. That’s an area covering about 200 million people.

In stark contrast to Homeland Security, the U.S. Justice Department operates under a set of guidelines that, with only limited exceptions, require attorney general approval before Justice Department officials can question, search, or arrest members of the news media, creating a lever for accountability at the top.

The guidelines, which date back to 1970, also respect the confidentiality of source relationships, making subpoenas to the press a last resort. A provision was also added in 2015 to include annual reporting requirements, improving transparency around Justice Department practices.

Customs and Border Protection and Immigration and Customs Enforcement have no such checks on their power. For years, immigration and customs enforcement personnel have claimed vast authority to question and search members of the press, arguing that they need that power in service of their border security mission.

The NBC 7 story suggests that immigration officials have aspirations beyond that limited mandate, with grave implications for press freedom and particularly for photographers and documentarians.

As our border becomes more of a battleground, it is high time for a set of Justice Department-style news media guidelines for Customs and Border Protection and Immigration and Customs Enforcement to give journalists the protection they need to keep the public informed.