As we have seen the completely botched implementation of the President’s ban on travel to and from the European Union over the past three days, Customs & Border Protection (CBP), especially the Customs part has come under some harsh criticism. Friends, lurkers, commenters, lend me your eyes. I come not to burry Customs, but to write about them. To be honest, the terrible mess of the arrivals processing at the thirteen airports designated to take international arrivals under the President’s executive order was complete foreseeable. Largely because the President completely botched explaining it in his Oval Office address last week. He misstated the policy and, as a result, a significantly large amount of US citizens and legal residents that were in the EU states, as well as several other European states not in the EU, immediately decided they need to get back to the US lest they get stranded somewhere in Europe. As a result far more people flew back to the US on Friday, Saturday, Sunday, and today than could be quickly and efficiently processed at Customs and Immigration. Let alone also screened for potential infection.

Last Thursday, the 12th of March, Ken Klippenstein reported in The Nation that:

An Internal Pandemic Document Shows the Coronavirus Gives Trump Extraordinary Powers

A leaked Customs and Border Protection directive allows the agency to actively surveil and detain individuals suspected of carrying the illness—indefinitely.

That’s just the headline – YOWZA!!!!

The rest of the article is just as hyperbolic. Klippenstein’s reporting centers on the US Customs and Border Protection Operations Plan for Pandemic Response, which he helpfully and fortunately posts in pdf form at the bottom of the article. If you want to read Klippenstein’s article, click through, but the good news for you, as well as for everyone else in the US, is that Klippenstein misreported what CBP’s operations plan (OPLAN) allows them to do during a pandemic, as well as what they’re actually supposed to plan to do. I know this because 1) I actually read all 277 pages of the document, including all of the annexes (these will be important in just a phrase or two), 2) I know how to read US government planning documents because I’ve contributed to a bunch on the Army and DOD side of things over the years, and 3) all the actual important stuff is almost always in the appendices so as not to clutter up the core document with things that only apply to specific units or sections.

Klippenstein reports that:

Titled “Operations Plan for Pandemic Response” and marked for official use only, the document was drafted during the avian flu pandemic of 2007. It’s a blunt statement of authority, describing Customs and Border Patrol overseeing potential tent cities of quarantined detainees at the border and coordinating with unspecified intelligence agencies—both foreign and domestic—as well as the Pentagon.

Though the plan was drafted during the Bush administration, it remains CBP’s most recent pandemic response plan and is still in effect, according to a Department of Homeland Security source who provided The Nation with the document. A memo dated February 28 of this year, signed by CBP’s Acting Commissioner Mark Morgan and reviewed by The Nation, made reference to the pandemic response plan.

“Be assured, CBP is ready,” Morgan wrote. “We have a CBP national pandemic plan as well as continuity of operations plans.”

The document contains a number of startling assumptions, like the following: “Pandemic influenza…may challenge the essential stability of governments and society.”

Provided a copy of the document, Katherine Hawkins, senior legal analyst with the Project on Government Oversight, expressed concerns about how the administration might use these powers on immigrants.

“Given the [Trump] administration’s animus for noncitizens, I worry a lot about what they would do with these authorities even when those authorities make sense for a government to have in a public health crisis,” Hawkins said.

Her concerns appear well founded, as the document makes repeated reference to CBP and Immigration and Customs Enforcement’s (ICE) role in transferring and detaining infected travelers—at one point alluding to “tent cities” erected for such a purpose.

The document states: “Due to the distance from CDC Quarantine Stations, some [CBP] locations will require areas designated for medical segregation to safely detain travelers potentially infected with the pandemic flu virus, thereby, helping prevent the spread of the virus to other detainees, travelers, and CBP employees.”

And: “CBP Directors of Field Operations and Chief Patrol Agents will jointly inventory their detention and isolation facilities, and identify other areas that may be utilized for these purposes, e.g., ‘tent cities’ with portable latrines.”

All of this sounds terribly dystopian until one reads the annexes. What the annexes make clear is that there is nothing in here that shouldn’t be. Every single reference in the two most applicable annexes – the first two: Intel and Operations – is always in regards to Centers for Disease Control (CDC) orders or Public Health Service orders or in terms of being in support of or seconded to assist either or both of those agencies. As in CBP will not make a decision to quarantine someone trying to enter the US. Rather they will make an initial determination that someone might need to be, then consult either the CDC or Public Health officer on site or if one is not on site, then via telephone, and then follow the instructions from CDC and/or Public Health. The actions delineated in these annexes include CBP using their preexisting protocols for travelers entering the US during times of non-medical emergency that arrive at points of entry who are ill, appear to be ill, or are traveling from some place with an outbreak of a specific disease. These include using preexisting contracted medically secure transport to appropriate pre-identified permanent or temporary facilities where treatment and observation can be conducted. And this rolls into the intel function. Passive collection is defined as the routine entry questionnaires and observing the person seeking to enter the US. Active collection is done under orders of the CDC and/or Public Health and includes taking temperatures and other diagnostics under CDC/Public Health officer direction. It isn’t setting up a stakeout, following someone, having them tracked by drone or spy satellite, or anything else nefarious. The breakdowns over the weekend were clearly from not having both enough Customs and Immigration officers in place, as well as not enough CDC and/or Public Health officials to do the screenings.

Don’t get me wrong, I don’t trust CBP as far as I can throw them right now given how they’ve politicized themselves in support of the President and his racist agenda. As they ACLU has documented, Customs & Border Protection claim jurisdiction, under Federal regulations, over everything in the US within 100 miles of the border/coast and within 100 miles of every international port of entry (airports that receive international flights). As the ACLU states, at least 2/3 of all Americans live within 100 miles of the border, the coast, and/or 100 miles of an international port of entry. Moreover, CBP claims that these Federal regulations suspend portions of the Constitution, which is why the ACLU is rightly concerned about this and monitors it. And when we get reporting that Immigration and Customs Enforcement (ICE), CBP’s sibling organization, is still conducting its stepped up raids in sanctuary cities, which will make it less likely that undocumented immigrants will seek medical care or other assistance, it only reinforces everyone’s suspicions. However, in regard to what Klippinstein has reported, I just don’t see anything in CBP pandemic OPLAN that shouldn’t be there or should freak anyone out. In fact this is a very soberly written and appropriate contingency and crisis action planning document.

Just a quick related note: a lot of people are asking about or worried about or, in some cases sending hoax tests and tweets, about whether the President will order a national/nation-wide quarantine or lockdown order. I’ll have more on this in a subsequent post, but the President doesn’t have this power despite declaring a national emergency for the novel Coronavirus and COVID-19. The short reason for this is that the national emergency declaration for the novel Coronavirus and COVID-19 is rooted in the Stafford Act and the Stafford Act does not give the President the power to order a nation wide quarantine or lock down.

Open thread!

COVID-19 & National Security Part I: Customs & Border ProtectionPost + Comments (67)