Less than 24 hours after a leading government watchdog found the Department of Homeland Security’s border agency in violation of a DNA collection law, an internal memo exclusively obtained by Fox News shows mixed messages about the border agency’s willingness to accept the findings -- as well as future compliance with the 2005 federal law.
The federal government’s Office of Special Counsel sent a letter last week to President Trump and Congress saying that U.S. Customs and Border Protection (CBP) had been in violation of federal law for nearly a decade by failing to collect DNA from illegal migrants and running it against an FBI violent crimes database. The goal was to identify suspects and tie them to open cases for murder, rape and other crimes.
That same day, Aug. 21, the Department of Homeland Security (DHS) responded to Fox News by suggesting changes were in the works, saying they are “working closely with the Department of Justice on a path forward for DNA collection.”
But an internal DHS memo – sent within minutes of the public statement – appeared to challenge the Office of Special Counsel findings and raised questions over the department's future compliance.
The one-page internal memo from a CBP spokesperson to the public affairs shop and other officials for "principals out doing media" outlines five "high-line talking points" that were "cleared by CBP Counsel."
“The bottom line is that we – the U.S. government – are doing DNA testing,” the talking points state. “When CBP makes a criminal referral, meaning an alien with a warrant or someone who has committed a crime in front of us, we turn them over to ICE or the U.S. Marshals, and those entities do DNA collection.”
It continued: “So we believe the government is doing DNA testing on the right people.”
That appears to conflict with the Office of Special Counsel report, which found CBP's "noncompliance with the law has allowed subjects subsequently accused of violent crimes, including homicide and sexual assault, to elude detection even when detained multiple times by CBP or Immigration and Customs Enforcement [ICE]."
In response to this story and the apparent conflict between last week’s public statement and internal email, a DHS official said Wednesday: “DHS component office of public affairs teams are fully aware of the Department’s position given to the media regarding DNA for CODIS and path forward.” CODIS is shorthand for the FBI’s Combined DNA Index System for violent crimes.
Last month, Fox News initially profiled three CBP whistleblowers -- Mark Jones, Fred Wynn and Mike Taylor -- who formally complained to the Office of Special Counsel last year after they said their efforts to implement the 2005 DNA collection law were blocked.
In a strongly-worded letter to Trump on Aug. 21, Special Counsel Henry Kerner said: "CBP's reliance on the assertion that ICE collects DNA from CBP transfers and submits this information to the FBI is not supported by data published by the FBI and provided by the whistleblowers."
The data, he said, indicated that ICE reported 181,246 arrests in 2017 yet collected DNA only from 4,977 of those people, or approximately 2.7 percent. CBP, the letter continued, took DNA samples from "fewer than 100 out of the approximately 330,000 individuals they arrested or apprehended.”
The Special Counsel reaffirmed that "under the DNA Fingerprint Act of 2005, federal law enforcement agencies are required to collect DNA sample from arrested or detained individuals."
In 2010, then-DHS Secretary Janet Napolitano got a waiver for the DNA requirements from then-Attorney General Eric Holder, citing “severe organizational, resource and financial challenges.” CBP has consistently taken the position that the waiver was still in effect due to operational challenges, and no laws were broken.
But the Office of Special Counsel sided with the whistleblowers in saying the DNA waiver was never meant to be permanent.
Kerner wrote CBP's behavior constituted an "unacceptable dereliction of the agency's law enforcement mandate." He also said it “is disturbing that this would occur even once, let alone routinely, for approximately a decade."
“Many cold cases might have been solved -- and victims of violent crimes granted closure -- by now if CBP had complied with its obligations under the law," he said.
After the Fox News story profiling the whistleblowers and the OSC findings were made public, a DHS official provided a lengthy statement.
"Although DHS is currently operating under the determination that the exceptions noted in the 2010 waiver remain unchanged, under the direction of Acting Secretary McAleenan, DHS is working closely with the Department of Justice on a path forward for DNA collection for CODIS,” it said.
In an additional statement, DHS highlighted its use of a separate DNA program to establish familial ties.
"The Department of Homeland Security and its components, under the direction of Acting Secretary McAleenan, has deployed the use of DNA testing to protect children from exploitation by cartels and smugglers as the administration continues to respond to the humanitarian crisis at the southern border,” the department said. “DHS will continue that program and we are currently working with DOJ to expand the collection of DNA for CODIS."