The federal government has disciplined a Border Patrol agent for speaking to the media — including NRO.
After being instructed to “immediately cease and desist” from issuing press releases and statements that contain “Law Enforcement sensitive” information, Agent Ron Zermeno spoke to NRO. Zermeno, health-and-safety director of National Border Patrol Council Local 1613, spoke about the order in an article titled “Border Patrol Tells Agent: ‘You Must Cease and Desist’ from Speaking with Media” on July 8, 2014.
After the article’s publication, the U.S. Customs and Border Protection agency served the agent with a proposal that he be reprimanded for two charges: unauthorized disclosure and failure to follow instructions. Nearly a month later, CBP issued an official reprimand for the charge of unauthorized disclosure that said, in part, “You willfully abandoned your responsibilities as a Border Patrol Agent and potentially placed several persons at risk.” It also stated that a copy of the disciplinary action would be placed in Zermeno’s personnel file for up to two years, and that any future misconduct may result in termination. The decision noted that Zermeno had no prior disciplinary record, and Zermeno did not provide comment for this story. NRO has not obtained any information regarding a decision on the second charge against Zermeno — failure to follow instructions.
The Homeland Security and Governmental Affairs Committee staff of ranking Republican Senator Tom Coburn (R., Okla.) has worked with Agent Zermeno. A staff member confirmed the veracity of the proposal and official reprimand and says he has examined comments made to the press by Zermeno.
“We’ve reviewed, and I’ve reviewed his comments, and I don’t think he has released anything that would violate law-enforcement sensitivities,” the staffer says. “I can’t see what he released that would have done any harm, but I’m willing to keep an open mind to that. I just don’t see it. I think he’s a good American who’s done the right thing.” The Republican staffer tells NRO that Agent Zermeno has been helpful educating the committee staff about the situation on the ground.
Under the unauthorized-disclosure charge against Zermeno are four “specifications,” three of which appear to contain errors.
Some of the problems seem small: The first specification cites a comment made by Zermeno “in an article from Fox News local, dated July 2, 2014, entitled ‘All-Star Panel: Humanitarian and Political Crisis Over Immigration.’” Rather than being an article for a local Fox station, however, the article is a transcript for Fox News Channel’s nightly news program Special Report. Just before a panel segment, Special Report showed a clip of Zermeno speaking that included a font on screen that designated the sound bite as coming from the day before.
Another specification listed cites a comment made by Zermeno “in an article from ABC 10 local news, dated July 7 2014 entitled ‘Border Patrol Union Official Under Gag Order, Says No Agents Securing Border.’” But that headline comes from a Breitbart TV headline on a blog post that aggregated an ABC 10 clip.
And the last of the three seemingly erroneous specifications (which identifies National Review Online as “the National Review Online Press”) says that NRO’s article about Zermeno’s cease-and-desist letter said Zermeno provided a copy of a separate document about two agents contracting scabies to the press. The article says no such thing.
The staffer says he thinks Zermeno did not break the law. Border Patrol agents who have spoken publicly are “literally the guys with the lantern saying ‘the British are coming,’ right? You want to embrace their criticism to be a better department,” the staffer says. Instead, Department of Homeland Security (DHS) officials are “almost treating this as a test case where they want to sort of strong-arm, overreact, to make all other people who are thinking of coming forward hesitant.”
The disciplinary action occurred after Coburn and DHS secretary Jeh Johnson exchanged letters about transparency within Johnson’s department, which have been obtained by NRO. Coburn’s letter to Johnson was dated after the proposal to reprimand Zermeno. Coburn’s letter did not name Zermeno, but did say the senator’s office had been contacted by “a number of individuals who work at [DHS].”
“I would request that you work with your leadership team across the Department to stress that DHS employees have a right to speak with Congress and/or the Inspector General without the fear of retaliation,” Coburn wrote. “A culture of retaliation continues to permeate throughout DHS, specifically the Border Patrol, and I ask that you work with me to correct this. Viewpoints and information from individuals should not be thwarted.”
Johnson responded to Coburn in an August 5 letter thanking Coburn for his message. “As I think you know by now, I agree wholeheartedly with the importance of transparency with Congress and our Inspector General,” Johnson’s letter says. Johnson continued to explain that he had signed two memoranda related to Coburn’s letter, and Johnson appears to have crossed out “Dr. Coburn” from the letter’s salutation and replaced it with “Tom.”
The document announcing Zermeno’s official reprimand is dated August 11, six days after Johnson’s letter. The committee staffer would not comment to NRO on what, if any, additional action was planned by the committee staff, but did call the disciplinary decision “unfortunate.”
— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.