The controversial unit of Customs and Border Protection that trawled through the travel and financial records of journalists and lawmakers is still monitoring Americans, according to documents obtained by Yahoo News.
The Counter Network Division, a part of CBP’s National Targeting Center, monitored U.S. citizens in the run-up to the anniversary of the Jan. 6 riot at the Capitol and in the days and weeks after, according to bulletins produced by the Department of Homeland Security Office of Intelligence and Analysis this month.
The division “continues to monitor social media and open source for threats related to 6 January,” states a DHS situation report. It notes that the division will continue to communicate daily with CBP “regarding any threat and incident reporting of any relevance to the upcoming anniversary of 6 January 2021, US Capitol Riot.”
Another bulletin shows the division was tracking right-wing groups that were planning events.
Those events “appear to be non-violent in nature,” according to a Jan. 8 DHS situation report, which says the CBP division was also tracking a planned Proud Boys event scheduled for Jan. 20, 2022. “The type of event is unknown at this time and there are no current overt or implied threats to the general public, CBP employees, law enforcement or members of the Federal Government,” the document states.
Despite determining that the events posed no threat to CBP employees or civilians, the unit continued to monitor these groups and report back on their activities, according to later bulletins reviewed by Yahoo News. The Jan. 6 anniversary at the Capitol took place without any major incidents.
“This is domestic surveillance, this is spying on Americans,” said a former high-ranking DHS official who worked at the National Targeting Center.
The Counter Network Division is part of the National Targeting Center, which resides within CBP. While the National Targeting Center was set up after the Sept. 11 attacks to focus on foreign threats entering the United States, its mandate has expanded in recent years to internal domestic threats. But the former high-ranking DHS official argued that CBP is not authorized to monitor Americans who pose no violent threat and have no connection to a threat crossing a border.
“CBP is not allowed to do this, it’s that clear,” the former official said.
Civil liberties groups also expressed alarm over the division’s monitoring of Americans.
“For years, CBP has engaged in mission creep, but this foray into surveillance of domestic individuals and groups is a disturbing and dangerous leap for an agency with a history of abuses,” said Scarlet Kim, an attorney for the ACLU National Security Project.
“CBP is not an intelligence agency, and it has no place spying on people and activities absent any legitimate connection to its limited mission at the border,” she continued.
CBP defended its monitoring but declined to answer questions from Yahoo News about the authority under which it was doing this work.
CBP’s Counter Network Division is under scrutiny by Congress after reporting by Yahoo News last month revealed that the unit regularly used the country’s most sensitive databases to investigate the travel, finances and personal connections of journalists, congressional members and staff, NGO workers and other Americans not suspected of any crime.
The division’s work included Operation Whistle Pig, a sprawling leak investigation launched by the division that ensnared journalists from Politico, the New York Times, the Associated Press and other news outlets. This reporting was based in part on a DHS inspector general investigation into the activity, which concluded with criminal referrals for prosecution for three CBP employees.
The Department of Justice declined prosecution, citing, among other reasons, the lack of policies and procedures governing the work of the Counter Network Division. The three CBP employees remain in their jobs.
Reporting by Yahoo News prompted the launch of four congressional probes and an internal review by CBP. The congressional oversight investigations have been stalled, however, because they’ve been unable to obtain the report from the DHS inspector general.
“Neither Senator Wyden nor the Senate Finance Committee have received the full inspector general report,” Keith Chu, Wyden’s spokesperson, told Yahoo News.
“It is not acceptable that the executive branch has failed to provide this report, or even a timeline for when it will be available, more than a month after the committees of jurisdiction requested it. Senator Wyden will consider taking additional steps to ensure CBP is accountable to congressional oversight if the report is not forthcoming soon,” Chu added.
The DHS Office of Inspector General defended itself in response to a request for comment from Yahoo News.
“Consistent with Attorney General Guidelines and CIGIE quality standards, reports of investigation are reviewed to ensure protection of witnesses and other information that may not be disclosed by law,” a spokesperson wrote. “That includes review by all entities that have equities in the report, before release to committees of jurisdiction.”
It is unclear when or if the congressional oversight committees will receive this report.
In response to Yahoo News’ initial reporting in December, the DHS told Yahoo News it was launching a review of the activities at the Counter Network Division and working to ensure First Amendment rights were safeguarded.
Less than a week after providing these statements, however, the Counter Network Division was involved in monitoring social media postings that were — according to its own description — peaceful in nature.
The former senior DHS official who worked with the unit described the Counter Network Division’s focus on domestic activity is a failure in oversight. “This is not what Counter Network Division was set up to do. It’s supposed to be looking at what’s coming across the border,” the former official said.
CBP defended its domestic monitoring work in a statement to Yahoo News.
“DHS has strengthened its efforts to prevent, detect, and mitigate threats to the homeland, including through enhanced information analysis,” a spokesperson wrote. “As part of this critical mission, CBP and other DHS agencies conduct lawful searches of open source, publicly available information to help identify potential threats to our communities, including those posed by domestic violent extremists. All of these efforts are conducted with rigorous oversight, consistent with our commitment to protecting First Amendment and privacy rights.”
Another former high-ranking DHS official also questioned CBP’s authority to investigate Americans in matters that have no connection to a border crossing, but said it could be authorized if it was tasked by, for example, the White House.
Yet the focus on domestic surveillance raises a critical question, the former official said: “What are you not doing when you’re focusing on that?”
“If you’re looking at domestic,” the former official added, “you’re not looking at the border.”