- The Washington Times - Tuesday, January 7, 2020

The Department of Homeland Security announced a new pilot program to begin taking DNA cheek swabs from people arrested by Border Patrol agents in Detroit and by officers at on border crossing in Texas, covering everyone including migrants and U.S. citizens.

The move is the first step to comply with a law that requires federal law enforcement agencies to collect DNA, but which Homeland Security has been ignoring for more than a decade. After whistleblower complaints, the department is testing to see what it can do to comply.

Having DNA can help agents link an undocumented immigrant to crimes already committed or to match someone lying about their name to a case history showing they had tried to sneak into the U.S. before.

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Immigrant rights activists, though, are outraged, saying they fear what Homeland Security will do with the information, which they warned would be a permanent part of federal law enforcement records once it is collected.

“Big Brother is alive and well in the Trump administration,” said Douglas Rivlin, communications director at America’s Voice. “What started as a policy to ensnare undocumented immigrants is now spreading to become a threat to the liberty of all Americans.”

The DNA collection was mandated in the DNA Fingerprint Act of 2005. That statute said both Customs and Border Protection, which patrols the country’s boundaries, and Immigration and Customs Enforcement, which handles deportations and interior immigration enforcement, should collect DNA and provide it to the FBI for storing in its index.

Obama administration officials granted a waiver to Homeland Security in 2010 to give the department time to comply.

Then-Secretary Janet Napolitano promised DHS would be ready to do some DNA swabs within a year, but she missed that deadline. Attorney General William Barr revoked the waiver last year, putting CBP on the clock to come up with a path to compliance.

The new pilot program in Detroit and Eagle Pass, Texas, announced Monday, is the first part of a five-phase rollout.

Homeland Security says it will take DNA from anyone facing criminal arrest, including citizens, and also to those detained as violators of civil immigration law — which applies to most immigrants caught crossing the border illegally and many in the interior.

It’s unclear how much help the DNA collection will be in criminal investigations.

A new privacy evaluation by ICE and CBP, released late last week, says the FBI can be so slow in processing DNA for matches that the detainee is already deported or released by Homeland Security.

“Therefore, it is unlikely that CBP or ICE would be able to use a DNA profile match for public safety or investigative purposes prior to either an individual’s removal to his or her home country, release into the interior of the United States, or transfer to another federal agency,” concluded Jonathan R. Cantor, the acting chief privacy officer at Homeland Security.

Still, he said, taking and submitting the DNA is required by law and should be done. The swabs could help other law enforcement agencies develop leads, too, he said.

In a lengthy memo, he laid out steps to protect privacy.

Those under 14 won’t be swabbed, to protect children, and DNA collected will be in Homeland Security’s hands only for the period of time it takes to mail the samples to the FBI, the department says. That limits the chances for the DNA to be used outside of the law’s intent.

Those who refuse the DNA swab can be prosecuted for a misdemeanor.

The Office of Special Counsel, a federal agency that handles whistleblower complaints, issued a report in August flagging Homeland Security’s violation of the 2005 DNA law.

OSC investigators said the Border Patrol arrested 330,000 people in 2017 but took DNA samples from fewer than 100 of them.

In one case, a suspect in an unsolved Dallas homicide was in CBP custody in 2013 and 2016 but was released each time without being linked to the killing. DNA was finally taken after a second arrest in 2016, and the suspect was tied to the killing, the report said.

The same situation played out in a Denver homicide case, in which investigators discovered the suspect in a 2009 slaying had been arrested by ICE that year and by CBP in 2014. But DNA was never taken, leaving the person free until 2017, when a federal prison tested the suspect and linked the person to the crime.

“The FBI noted that had a DNA sample been collected during either of these interactions, this case would have likely been solved years earlier,” special counsel Henry J. Kerner wrote.

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