Back to the Wall:
Can Janet Napolitano stop the border-fence boondoggle?
“Once the wall is built, it means that DHS has lawlessly taken my land,” Tamez says. “It will take me until my last days to right that wrong. And after I am gone, my children will have to take up the fight.”
In 2006, with the passage of the Secure Fence Act, Congress mandated the construction of 670 miles of fence along the southern border by the end of 2008. As of Jan. 21, according to Department of Homeland Security spokeswoman Angela de Rocha, 582.2 miles had been built. Despite the Dec. 31 cutoff date in the Secure Fence Act, DHS is still building its wall. So far it appears that properties entangled in lawsuits, like Tamez’, have been mostly bypassed. But there’s no telling how long that will last.
In Tamez’ case, U.S. District Court Judge Andrew Hanen in Brownsville, has likely ensured that the bulldozers won’t be rolling in tomorrow. In March, he ruled that negotiations must take place between landowners and Homeland Security before property can be seized. The trial, set for June, will determine whether DHS has conducted “good faith negotiations” with Tamez over a fair price for her land.
Meanwhile, the agency continues putting up the fence on federally owned property such as the Lower Rio Grande Valley Wildlife Refuge, just east of McAllen, where other federal judges have allowed DHS to move ahead without negotiations. In Eagle Pass, a small border city 145 miles southwest of San Antonio, a mile of fence has already been built through the city-owned golf course. DHS plans to build another mile through the city’s downtown park, says Mayor Chad Foster.
Eagle Pass was the first city in Texas to get hit with former DHS Secretary Michael Chertoff’s prerogative to waive federal law and condemn property to speed construction of the wall. Congress granted this unprecedented power in the 2005 REAL ID Act. “We weren’t even aware of it when it came,” Foster says. “It was just another blow under Chertoff—a tactic to steamroller us.”
The mayor hopes that Napolitano, as a former elected official from a border state, will work with communities and local elected officials on both sides of the border to come up with alternatives to the fence. “Napolitano understands the border and she has a history with the border governors,” Foster says. “And in this country boy’s opinion, that’s the way we’re going to resolve this issue—by working with our neighbors.” Chertoff never showed much interest in that approach.
When she was governor of Arizona, Napolitano once said, “Build a 50-foot fence; I’ll show you a 51-foot ladder.” Despite the comment, the new Homeland Security secretary is not completely against fencing. During her Senate confirmation hearing on Jan. 15, she told senators that a fence in urban areas “might make some sense.” Napolitano was not asked to elaborate, but in past hearings, Border Patrol agents have testified that fencing in urban areas gives them time to detain crossers before they blend in with crowds of people.
Immigration reform and border control will not be the first items on the new Congress’ agenda, says U.S. Rep. Raul Grijalva, an Arizona Democrat who has been a staunch opponent of the border fence. And with an economic crisis and two wars being waged, they’re not high on the Obama administration’s agenda, either. “There’s a shift in priorities now with the economy,” Grijalva says. “Throwing $450 million at a fence pales in comparison to fixing our economy.”
The shift in focus away from border security might give Napolitano some much-needed time to evaluate and reinvent a department that has been taxpayers’ worst nightmare, and private contractors’ idea of heaven, ever since its creation after 9/11. In 2006, the agency estimated that a mile of fence would cost $1 million. By August 2008, the price tag had shot up to $7.5 million per mile.
Last year, legislators finally became frustrated by the agency’s lack of disclosure and escalating costs, and they refused to appropriate more funds to DHS to finish building the wall. Chertoff then transferred money from other programs, including port security and virtual fence technology, to continue the construction.
That’s been the mantra of the department Napolitano has inherited: Build fence, no matter the cost. “She has inherited that mentality,” says Grijalva, “and no doubt there is a rush to get the fence done.”
Napolitano has also inherited a pork-barrel mentality. From the agency’s inception, it has enthusiastically outsourced a majority of its duties. No one has benefited quite like the Boeing Corp. In 2006, Boeing won a three-year contract to build 6,000 miles of physical and virtual fences along the southern and northern borders. As of last August, Boeing had been awarded $993 million, according to the Government Accountability Office (GAO). Boeing also has the right to three one-year extensions to the contract if Homeland Security is happy with the results.
Which raises another endemic problem: oversight, or the lack thereof. Private companies who get DHS contracts do not have to report the progress or outcomes of their work to the American taxpayer. Even members of Congress have difficulty getting answers about how the billions are being spent—another legacy of the Bush administration that Napolitano will have to grapple with. “The administration has … hidden contractor overcharges from Congress, international auditors and the public,” Democratic Rep. Henry Waxman of California said in 2007, “impeding oversight and diminishing accountability.”
Conveniently enough, private contractors are also doing more of the oversight. The fence-building project, called SBInet, is a component of the DHS’s Secure Border Initiative program. In a 2007 audit report, Richard Skinner, inspector general for Homeland Security, said that 65 of the 98 DHS staffers responsible for oversight of SBInet were private contractors. After being criticized by Congress for the lack of oversight, DHS estimated that it would need at least 470 employees to properly oversee SBInet contracts. After a round of hiring, the agency still has only about half the staff it needs: 129 government employees and 164 contractors, according to a September 2008 GAO report.
“So much is kept under wraps, you don’t know what worked and what didn’t,” says Pete Sepp, a spokesperson for the nonprofit National Taxpayers Union. “You don’t know whether the expenditures that went out of the government’s treasury were worth it or not.”
But it is clear that those expenditures amount to a virtually bottomless pit. Stunningly enough, Boeing’s SBInet contract has no spending limit, despite repeated protests from government auditors. As costs continue to climb, DHS must go to Congress to beg for more money—and until last year, when Congress finally applied the brakes, they were getting it.
“We don’t want another industrial-military complex where contractors have an inordinate amount of control over policy,” Grijalva says. Referring to the Department of Defense, long known for its largesse in doling out private contracts, Grijalva adds, “We don’t need another DOD, which is what’s starting to happen at DHS.”
It’s been happening all along. A 2006 Forbes magazine article estimated that DHS had already doled out $130 billion in private contracts since 9/11. The department is certainly not shy about wooing private contractors; it even has a Web page called “Open for Business.”
“The federal government now spends nearly 40 percent of discretionary spending on contracts with private companies, a record level,” Waxman said in 2007. “This surge in contract spending has enriched private contractors like Halliburton, but it has come at a steep cost to taxpayers through rising waste, fraud, abuse and mismanagement.”
Nobody has gotten richer off DHS contracts than Boeing. And as the lead contractor on the border, the company has in turn subcontracted out a large portion of the management, design and development of the fence to hundreds of other companies. Boeing will not release the names of those subcontractors, calling this “proprietary information.” Among the names that have leaked out is Texas-based Perot Systems, owned by former presidential candidate Ross Perot.
One classic example of the waste to which Waxman referred is Boeing’s Project 28. In this pilot project, a high-tech “virtual fence” with video surveillance towers, sensors and radar devices was to be put up along 28 miles of the Mexican border. After an original $20 million investment was run through, DHS gave Boeing $65 million to upgrade its software; the original version, one used by police dispatchers, did not meet the Border Patrol’s needs. The system had been developed, it turned out, without consulting with Border Patrol agents working in the field.
Last year, Congress deemed Project 28 a failure. Once touted as a key component of border security by the Bush administration, the virtual fence was put on hold, with the remaining money transferred to build more physical fence.
Sepp says it will be a stiff challenge for Napolitano to reform Homeland Security. “The new secretary will have to bring an outsider’s perspective and approach it as if it were a fresh initiative,” Sepp says. “It will have to be a top-down process. Congress will be the wild card, because they will have to decide how much power they are willing to cede to the executive branch to rein in costs.”
Members of Congress typically find it difficult to ignore the power of lobbyists from companies like Boeing, or requests from their home districts to invest in pet border-security projects. And when it comes to lobbying, Boeing, the second-largest aerospace and defense contractor in the world, has some of the most powerful connections in the Beltway. Its board of directors includes such Washington heavyweights as former Secretary of Commerce William Daley, who served on the Obama/Biden transition team, and Kenneth Duberstein, a former chief of staff for President Ronald Reagan. In 2008, Boeing was the top recipient of federal contracts, at $2.9 billion, according to the nonprofit OMB Watch.
During the 2008 election cycle, Boeing gave more than $2.1 million to political campaigns. The top recipient was Barack Obama, who received $167,098. Most members of the Texas congressional delegation also got some of Boeing’s bounty, led by Republican Ron Paul ($22,688) and Democrats Ciro Rodriguez ($10,250), Silvestre Reyes ($10,000), Solomon Ortiz ($7,500) and Ruben Hinojosa ($2,500). Republican Sen. John Cornyn’s re-election campaign got $9,000 from Boeing.
Reyes, Ortiz and Hinojosa all voted against the Secure Fence Act in 2006. Rodriguez was not a member of Congress at the time but told the Observer that he opposes building the fence. Obama, Cornyn and Paul all voted for the fence legislation. Cornyn did not respond to requests for comment. Paul’s media director, Jesse Benton, said that his contributions came not from Boeing but from individuals who identified themselves as Boeing employees. “Dr. Paul often says that lobbyists do not even bother to visit him on Capitol Hill because they already know they will get zero concessions,” Benton said in an e-mail. Ortiz reiterated his opposition to the border fence in an e-mail, adding that “campaign contributions have not altered or influenced my position on the border security.”
Janet Napolitano has thus far refused to talk about her plans for the border fence. She told the Arizona Star in December that she would have no comment “Until I actually get in and see what the status of the project is, the status of payment of the project is, what’s anticipated, what problems have been incurred and the like.”
Eloisa Tamez, Mayor Chad Foster and others who’ve been battling Homeland Security think Napolitano should come to Texas and take a gander. “The new secretary needs to come to Cameron County and see what the land looks like,” says Tamez. “Chertoff never set foot down here.”
In 2007, Congress tried to force DHS to reach out to border communities. Rep. Ciro Rodriguez added wording to a Homeland Security appropriations bill requiring the agency to consult with folks about plans for the fence. The agency’s response was to outsource the job—in this case, to E2M, a Colorado company. E2M asked border residents to submit their questions and complaints in writing to a stenographer. They have received no responses.
Tamez, long since tired of waiting, sued Homeland Security last February over the plan to run the fence through the center of her land. Tamez filed a motion for formal discovery in federal court in Brownsville to force the agency to explain how the value of her property is being assessed and what DHS plans to do with her land. Among other things that DHS hasn’t made clear to property owners like Tamez is whether there will be entryways to access their properties on the other side of the fence. Nor do they know whether the fence on their land will have cameras or other surveillance devices, which could be an invasion of their privacy.
Unlike most complainants, Tamez has been granted a jury trial, scheduled for June. “We’re really lucky here, because we have a judge who really values and follows the Constitution,” she says. Her lawsuit seeks fair market value for her land, claiming this right under the U.S. Constitution. (Most property owners have been awarded far less than market value by the feds.) Ultimately, she hopes her legal action will put off the fence-building long enough for the Obama administration to halt the construction.
Along with property owners, environmental and wildlife-conservation organizations have also been battling the DHS in court, but with little success. The nonprofit Defenders of Wildlife and the Sierra Club petitioned the U.S. Supreme Court last March, arguing that the Homeland Security secretary’s authority to waive laws to build the border wall violates the constitution’s separation of powers. In June, the court rejected the petitions without explanation.
The results of Homeland Security’s sweeping powers were all too vivid when Noah Kahn, a federal lands associate with Defenders of Wildlife, recently went to see some of the border fence under construction just east of McAllen. The steel and concrete fence is being built on a federally owned tract of the Lower Rio Grande National Wildlife Refuge. “Mud and fill were being dumped in the wetlands,” Kahn says. “Palm trees and native hardwoods were covered in mud. A silt fence had been installed, but it was clearly too little, too late.”
Kahn sees the damage as directly related to Homeland Security’s ability to ignore legal restrictions. “When you disregard environmental laws, it leads to real adverse impacts,” he says. “It’s not just an academic argument.”
So far, the new Homeland Security regime has provided few clues about how it will reinvent the department—or overhaul the waste-laden SBInet project. During her six years as Arizona governor, Napolitano managed to anger groups on both sides of the immigration debate. She was the first governor to call for National Guard troops to patrol the border, pleasing the right wing. She supported drivers’ licenses for undocumented immigrants, angering conservatives.
Napolitano’s early actions at Homeland Security have hardly done more to indicate a clear direction beyond assessing the damage already done. Her first directives to the staff involved gathering information and reviewing programs and strategies inherited from the Bush years. Urging the staff to create a “more effective and efficient department” is about as specific as she’s gotten so far.
But like others who battled the old department and lost, Kahn sees reasons for hope, noting that Napolitano “has made the comment that DHS is still a new agency and there is still an opportunity to shape it. I think she will make the agency more transparent and more responsive.”
All of which is well and good, Tamez says. But she won’t rest until Napolitano stops the bulldozers. “I’m just really angry,” she says. “It’s aggravating and appalling that the executive branch continues to persecute us. They have tried in every way to keep us from having justice served.”