New Documents Bolster Case that Border Patrol Retaliated Against Humanitarian Group

When volunteers with a faith-based humanitarian group in Arizona published a report earlier this year detailing the systematic destruction of water jugs left for migrants in the Sonoran Desert, they made a point of first reaching out to the agency implicated in the destruction: the U.S. Border Patrol.

At 8:23 a.m., on January 17, the day the report was released, the humanitarian group, known as No More Deaths, emailed the Border Patrol Tucson sector public affairs office a copy of their findings. Included with the report was video of Border Patrol agents engaged in the destruction of water jugs. By the end of the day, those images would go viral, garnering more than a quarter million views on Facebook alone. Hours after the report was published, a caravan of law enforcement vehicles descended on a building in the unincorporated community of Ajo, Arizona, that No More Deaths volunteers have openly used for more than three years.

As No More Deaths’ report and video footage was circulating online, a pair of plainclothes Border Patrol agents had set up a surveillance post overlooking the property, known locally as the Barn. The agents observed two men who they determined were undocumented. The men were in the company of an Ajo resident whose name the agents already knew, Scott Warren, a college instructor whose work with No More Deaths and other organizations committed to preventing the loss of life in one of the deadliest stretches of the U.S.-Mexico divide was hardly secret.

With support from deputies with the Pima County Sheriff’s Department, the Border Patrol rushed in. Warren was arrested along with the migrants and accused of providing them with food, water, and shelter over the course of three days. Indicted by a grand jury on two counts of harboring and one count of conspiracy in February, Warren faces two decades in prison if convicted.

From the beginning, this timeline of events — the release of the No More Deaths report followed by the arrest of one of its longtime volunteers — has raised questions. Chief among them: Did the Border Patrol arrest an activist to get back at his organization for making the agency look bad? And did the U.S. Attorney’s Office in Arizona, after years of largely leaving No More Deaths alone, chose to aggressively prosecute the case as part of some broader Trump-era effort to intimidate border activists?

With hundreds of human remains found along the border each year, and the Trump administration hellbent on deporting as many people as possible, including people with deep roots in the country and strong impulses to return, the answers to those questions are critical, as it often falls to civilian humanitarian groups to respond to the ongoing crisis of death and disappearance in the borderlands. What’s more, the possibility that the Border Patrol might make an arrest in response to criticism it has received carries plainly chilling implications for border residents who question or challenge the agency’s actions.

Like others in Arizona’s humanitarian aid community, Warren’s attorneys suspect that their client’s arrest and the release of the No More Deaths report and video may have been related. The problem, the defense team argues, is that the Border Patrol has staunchly resisted the release of materials that could shed further light on the matter. In a pretrial hearing in Tucson on Tuesday, Warren’s attorneys, Greg Kuykendall and Amy Knight, argued that Warren’s arrest suggests a case of selective enforcement and urged Magistrate Judge Bernardo Velasco to compel the agency to open its records.

“What this amounts to is a straightforward discovery request,” Kuykendall said. “We need to obtain discovery that is exclusively in the control of the prosecution.”

Kuykendall argued that No More Deaths’ email to the Border Patrol added to a mountain of circumstantial evidence suggesting that the Border Patrol was well aware of the group’s report, and the agency’s decision to send agents to the Barn on that day — of all days — was highly suspect.

Nathaniel Walters, one of the two assistant U.S. attorneys prosecuting a series of cases against No More Deaths volunteers, pushed back. Walters argued that the Barn had been identified as a “stash house” “months prior” to Warren’s arrest. Furthermore, he added, the fact that No More Deaths emailed the Border Patrol’s public affairs office in Tucson about the report did not mean that agents at the Ajo substation two hours south, which was responsible for Warren’s arrest, had any idea it was coming out.

That was not exactly accurate. Documents released to The Intercept via a freedom of information request reveal that two hours after No More Deaths alerted the Tucson public affairs office of the upcoming report, Fernando T. Grijalva, the patrol agent in charge of the Ajo substation, forwarded an email to Lt. Robert Koumal, commander of the Ajo district for the Pima County Sheriff’s Department, and Rijk Morawe, an official at the National Park Service.

“For your situational awareness,” Grijalva wrote. Koumal, at the sheriff’s department, acknowledged receiving the email, writing “TY.”

Grijalva’s email included an unsigned write-up on the upcoming No More Deaths report. “In general,” it noted, the No More Deaths report “addresses vandalism of their food and water drops, highlights the Border Patrol raid on their camp in June 2017, and uses various scientific calculations to illustrate that the punctured water bottles were located in areas where their loss would be most lethal to migrants.”

“Game cam photos are included, ranging from 2010 to 2017,” it said.

There is an image from 2017 of an agent ‘stealing’ a blanket, though he could also be innocently retrieving what appears to be trash left in a remote location. In the wake of the NMD Camp raid in June 2017, the video footage of agents vandalizing water bottles in 2012 was re-circulated online. It is likely there is video footage of the 2017 encounters. I haven’t located this footage yet; it is also possible more will be shown at the meeting scheduled for tonight at 8pm at the Global Justice Center.

The advisory also included screenshots from the No More Deaths Facebook page and warned that the organization had encouraged people to “call the Tucson Border Patrol Station to express their outrage at Border Patrol for vandalizing and impeding humanitarian efforts.”

“Agents and staff at TUS should be made aware in case they receive a flood of calls,” it said.

The existence of the communication indicates at least two things. One, that the supervisory agent directing operations at the Ajo substation on the day the No More Deaths report was released and Warren was arrested knew about the report prior to the arrest. And two, that the supervisory agent engaged in interagency communications with the Pima County Sheriff’s Department, which would cooperate in Warren’s arrest, regarding the No More Deaths report.

Whether Walters, the assistant U.S. attorney, knew that the Ajo station was in fact aware of the No More Deaths report prior to Warren’s arrest is unclear. It could have come up, for example, in a June 6 meeting that his office requested through Jarrett L. Lenker, acting special operations supervisor for the Tucson Sector Intelligence Unit — the existence of that meeting was also revealed in documents released to The Intercept via a freedom of information request.

“I apologize for the late notice, but is there any way we might be able to request two of your deputies for a pre-trial meeting at the Ajo Border Patrol Station on Wednesday June 6, 2018, at 1400,” Lenker wrote in email to Koumal at the Pima County Sheriff’s Department. “The Assistant United States Attorney’s Office will be present, traveling from Tucson to Ajo that day, to interview our agents and your deputies in conjunction with the Scott Warren arrest on January 17, 2018.” Lenker then added the names of the deputies “that the AUSA requested.” Koumal wrote back: “Expect them to attend.”

Questions of discovery and transparency have come up repeatedly in the government’s prosecution of Warren and the eight other No More Deaths volunteers currently facing federal charges. In April and in September, attorneys for the defendants attached exhibits to their motions that strongly suggest federal law enforcement in Arizona is actively targeting the group for its work in the desert. In both instances, the U.S. Attorney’s Office successfully lobbied to have the materials, which included text messages between law enforcement officials, sealed, but only after they were obtained by The Intercept through a public repository for federal court records.

For now, the circumstances that led to the surveillance of the Barn, culminating in Warren’s arrest, remain murky. And that, Kuykendall argued in Tuesday’s hearing, is precisely why the Border Patrol needs to come clean. “They’re stonewalling,” he said. “All I’m asking for is the right to look at some evidence.”