Memo: Department of Homeland Security Office of Civil Rights and Civil Liberties – 4 years after Iranian Detainments

Summary of Events

In the early morning of January 5, 2020, reports began to emerge that dozens of individuals of Iranian heritage – including U.S. citizens – were being detained upon reentry into the United States at the Peace Arch border crossing in Blaine, Washington. Coming shortly after the U.S. assassination of Iranian general Qassem Soleimani, and amid fears of Iranian reprisals, the reports of targeting of individuals of Iranian heritage was of great concern as few knew how widespread the incidents were and who had signed off on the discriminatory targeting. The National Iranian American Council (NIAC) was among the groups to sound the alarm, and submitted a formal complaint to the Department of Homeland Security (DHS) Office of Civil Rights and Civil Liberties (CRCL) to investigate the discriminatory behavior targeting individuals on the basis of their Iranian heritage. 

A long bureaucratic investigation into the incident followed NIAC’s complaint, which has now culminated in the publication of a CRCL memo detailing what went wrong that day and recommending specific steps to ensure such an incident does not happen again. 

Summary of CRCL Analysis

Upon receiving the news of General Soleimani’s assassination, the CRCL memo recounts that Todd Owen, the Executive Assistant Commissioner for the CBP (Customs and Border Patrol), sent an email to all Directors of Field Operations regarding “heightened vigilance.” The email detailed how CBP requested that all field offices “heighten our vigilance against any potential retaliation in the homeland. There is no specific intelligence at this time indicating any such threat here, but nonetheless, please increase your security awareness at our facilities to better safeguard our employees (2).” According to the memo, this instruction for “heightened vigilance” triggered the Seattle Field Office (SFO) to enact specific policies targeting individuals on the basis of national origin. 

Based on the directive for heightened vigilance, the SFO Tactical Analysis Unit (TAU) prepared their own “High Threat Alert” document that mandated secondary questioning of Iranians and Iranians Americans. The exact language of the alert was as follows:

This outwardly discriminatory memo led to the detaining of hundreds of Iranians and Iranian-Americans entering through the Peace Arch crossing on January 4th with many waiting for hours in uncomfortable conditions. All of these individuals, their families, and several other Iranians were questioned on their family members, social media accounts, political opinions, past or recent travel to Iran, and whether or not they or their family members had been conscripted by the Iranian government. Many of the Iranians and Iranian Americans who experienced this discriminatory treatment were merely returning from a concert in Canada, and were told that “this was not a nationwide order. It was only a Washington border order.” Kiara Vaziri, one of many Iranian-Americans detained, told NBC News that, during her experience, “some people got their phones taken away and were told to give their iPhone, Facebook, and Instagram passwords.” Others like Negah Hekmati recounted to The New York Times that she experienced the detainment with her two young children, one of whom was 5 years old at the time and was unable to sleep during those long and arduous hours of detention and questioning. 

Well after the incident and CBP’s public denial that a discriminatory order had been issued targeting Iranians, the published CRCL memo both acknowledged the discriminatory directive and sharply criticized the SFO’s “High Threat Alert.” The CBP Executive Director denounced the targeting memo as “an overzealous approach to the guidance by referring all individuals from areas of national concern to secondary for additional vetting”. All field offices were directed by CBP to “increase your security awareness” and not necessarily establish an entirely new set of procedures catered to the circumstances at hand, especially one that so directly singles out individuals based on race, national origin, and citizenship. Also considering that CBP was itself fully aware that “there is no intelligence at this time indicating any such threat,” it becomes overwhelmingly clear that the Seattle Field Office (SFO) erred significantly in issuing its explicitly discriminatory targeting memo. 

In their analysis of SFO’s individual directive, the CRCL Office recounted numerous DHS guidelines that are in place to discourage such discriminatory targeting, including the “Department of Homeland Security’s Commitment to Nondiscriminatory Law Enforcement and Screening Activities,” which prohibits the consideration of race or ethnicity in daily law enforcement and screening activities, excluding instances with extenuating circumstances. The Implementation Guidance of this policy, which is emphasized in numerous memorandums in reference to the original policy, states that “CBP personnel may use race or ethnicity only when a compelling government interest is present, and only in a way narrowly tailored to meet that compelling interest. National security is per se a compelling interest, but use of race and ethnicity must nonetheless be narrowly tailored to the particular national security concern involved in a proposed use”. 

The criteria that the Seattle Field Office (SFO) developed in their “High Threat Alert” directive was such that both country of birth and nationality were to be evaluated in the screening process, in addition to travel. With regard to the CRCL’s definition of ‘country of birth,’ they conclude in their investigation that the criteria used by the SFO to screen Iranians and others were not “narrowly tailored to a compelling government interest”. They found that the SFO was operating on “generalized information” due to a described lack of communication and awareness of the true nature of the alleged threat and how to properly address it. Additionally, the National Targeting Center (NTC) had allegedly failed to alter their targeting rules to accommodate the apparent threat. These factors together led the CRCL to believe that it was “impossible to create criteria narrowly tailored to that threat.” Ultimately, the outcome of these events stemmed from the collective failure by all the agencies involved – SFO, NTC, and CBP HQ – to effectively establish among each other what the initial directive enabled them to do and which DHS policies restricted them.

Furthermore, to address the targeting that took place relative to the CRCL’s definition of ‘nationality,’ CRCL also concluded that the SFO’s extreme vetting approach in response to the general directive did not establish sufficient reason to rely solely on nationality to justify referrals to secondary questioning based on their “High Threat Alert”. DHS policy states that resorting to screening based on nationality requires an “assessment of intelligence” that is notably absent from the records of the SFO’s vetting process.

Recommendations

CRCL provided three recommendations at the end of their memorandum, which include providing additional training on the DHS Nondiscriminatory Law Enforcement and Screening Activities and Implementation Guidance for all staff in the Seattle Field Office. Additionally, the CRCL formally recommended an amendment to the CBP nondiscrimination policy statement to consider all DHS standards, specifically those that pertain to the use of nationality in screening processes. The third recommendation, however, is notably redacted from the publicly posted memorandum. Following subsequent communication with CRCL, it is our understanding that this signifies that DHS has not agreed to implement the recommendation at this time, which is concerning. 

The recommendations that were implemented mark a step in the right direction following their in-depth analysis of how a DHS branch violated its own internal policies and engaged in overt discrimination violating the civil rights of hundreds of individuals of Iranian heritage. However, given the severity of what Iranians and Iranian-Americans experienced at the border due to the DHS directive in January 2020, it is worth further exploration of whether or not the above-mentioned recommendations are sufficient to prevent similar incidents from taking place in the future. 

What exactly is entailed in the “additional training” for SFO personnel, and how would the amendment to the CBP nondiscrimination policy be enforced? Are there proper accountability vehicles in place to ensure that the additional training and amendments are effectively implemented? Do existing national security exemptions effectively swallow the rule prohibiting discriminatory targeting across the board, and why did DHS not adopt the redacted third recommendation? 

While DHS has taken the step of investigating the situation and creating a memorandum in response to the complaints submitted by NIAC and other civil rights organizations, many questions still remain unanswered. The process of protecting the civil liberties of Iranian and Iranian-Americans who are vulnerable to rights violations will continue, and policymakers must examine this incident closely and press for systemic change so that similar discriminatory targeting does not happen again.

The original memorandum published by the DHS Office of Civil Rights and Civil Liberties is included below: