Five journalists are taking the Trump administration to court over a controversial surveillance program uncovered by NBC 7 Investigates earlier this year.
In December 2018, freelance photographers Go Nakamura and Bing Guan left their hotel in Tijuana and drove north to the San Ysidro Port of Entry.
Nakamura and Guan have worked for several of the world’s largest news outlets, including The New York Times, The Intercept and Reuters. Last year, the two freelancers were in Tijuana, Mexico, documenting the arrival of the migrant caravan that brought thousands of Central Americans north to the U.S. border, where they sought asylum.
Nakamura and Guan traveled often, so crossing a U.S. port of entry was very much part of their routines.
But on Dec. 29, 2018, at the San Ysidro Port of Entry, U.S. Customs and Border Protection (CBP) agents scanned their passports and immediately directed them to secondary inspection.
Guan and Nakamura told NBC 7 Investigates they were eventually taken to separate rooms, where plain-clothed agents interrogated them about their work and what they knew about the caravan.
According to the photographers, the agents asked to see all photographs on their cameras. Fearing they had to comply and could not leave, they agreed. Guan and Nakamura said the agents made copies of their migrant caravan photos and questioned them about the identity of the migrants and their interactions with caravan organizers and supporters.
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More than an hour later, they were allowed to leave. But the photographers would later learn that the agents had placed “migratory alerts” on their passports. That designation alerted other agents to stop and question them when they tried to cross back to the U.S. from Mexico and other foreign countries.
Following their interactions in the secondary inspection that day, border agents would draw green X’s over Nakamura and Guan’s faces in their photos, a sign that border agents had interviewed them about their alleged ties to the migrant caravan.
Guan, Nakamura and three other American journalists subject to similar scrutiny are now suing the Trump administration for allegedly violating their constitutionally-protected rights.
The five journalists learned about the government’s surveillance tactics in March after NBC 7 Investigates contacted them, sharing internal Department of Homeland Security (DHS) documents that included the photos of their faces and details of the questioning they underwent at the border.
Their stories were first documented by NBC 7 Investigates on March 6 in a report that uncovered an intelligence-gathering effort by United States and Mexican authorities along the southern border, targeting more than 50 people, including attorneys, humanitarian aid workers and five other journalists covering the migrant caravan.
The journalists are now represented by the American Civil Liberties Union (ACLU), which seeks a court order requiring the U.S. government to destroy the personal information gathered from them by border agents. ACLU lawyers also want border agents to reveal the names of other agencies, individuals and foreign agents who may have received those records. (To read the lawsuit, click here.)
Freelance photographers Ariana Drehsler and Kitra Cahana are also listed as plaintiffs in the lawsuit.
“I have so many questions [about the surveillance],” Drehsler told NBC 7 Investigates in March. “I have more questions than answers, and don't understand what [the agents] are hoping to find.”
Like Nakamura and Guan, Drehsler said that U.S. border agents directed her to secondary inspections on three separate occasions when she tried to cross through the San Ysidro Port of Entry while on assignment for United Press International.
Her first encounter was the day after Nakamura and Guan had been pulled into secondary inspections, on Dec. 30, 2018.
“Two people in plainclothes came down and took me to another room,” Drehsler said of the events that unfolded on Dec. 30, 2018, the day after Nakamura and Guan were ordered to secondary inspection. “They questioned me in a small room, asking me about the [migrant] shelter [in Tijuana,] what was I seeing there, who was I working for.”
“They said that I was ‘on the ground,’ and they were not, which I thought was really interesting.”
After the third encounter, Drehsler said agents stopped ordering her to secondary inspection. She recently told NBC 7 Investigates that she can now cross the border in both directions without delay.
But that’s not the case for the three other journalists.
Kitra Cahana claims she was detained by Mexican immigration in January when she flew to Mexico City on assignment. Cahana told NBC 7 Investigates that the Mexican agents held her for 13 hours before denying her entry into their country.
“I wasn't allowed to be in communication with anyone,” Cahana recalled. “I wasn’t allowed to contact my embassy. The uncertainty of having an alert placed on your passport and not knowing where and when that's going to prevent you from doing your work is really problematic.”
A week after that incident, Cahana learned that the alert placed on her passport by U.S. immigration agents would also prevent her from entering Mexico from Guatemala on another freelance assignment.
“What happened to them was a violation of their constitutional rights,” said Esha Bhandari, a staff attorney with the ACLU. “[The five journalists] were forced to give up information, including their observations as journalists and their sources that they should have never been forced to give to the government.”
Bhandari said in addition to removing alerts placed on the journalists’ passports, the goal behind the lawsuit is to prevent these kinds of surveillance and intelligence-gathering tactics from happening again.
“[We want] to establish that what happened was unconstitutional and that border screening cannot be a pretext to engage in wide-ranging interrogation that infringes on freedom of the press.”
In response to a request for comment on the new lawsuit, CBP said, "As a matter of policy, CBP does not comment on pending litigation. However, lack of comment should not be construed as agreement or stipulation with any of the allegations."
The five journalists are not alone in their decision to challenge the U.S. government’s border surveillance tactics.
Three other lawsuits have been filed by individuals listed in DHS documents, including a former La Mesa pastor who claims she was detained in secondary inspections for hours after praying and counseling asylum seekers in Tijuana.
In another development, the former Department of Homeland Security special agent who provided those internal documents to NBC 7 has publicly identified himself. (To see the full story, click here.)
DHS Special Agent Wesley Petonak said he told his supervisors about his concerns that the department’s interrogation and documentation techniques were an apparent violation of citizen’s rights.
Petonak told NBC 7 he was surprised and shocked by his supervisors’ response.
“They were kind of very ‘laissez-faire’ about it,” Petonak said. “There was really no kind of action about it. [They said] it's ‘standard practice.’”
Special Agent Wes Petonak discusses how he came across the surveillance documents and why he made the “drastic step” of leaking the documents to NBC 7 in the latest episode of INSIGHT. Listen to the episode below.
