This week, a federal judge in San Diego ruled that a U.S. government surveillance program on dozens of activists and journalists along the Mexican border was unconstitutional.
The ruling is the latest update in a national story NBC 7 Investigates first broke four years ago.
U.S. District Judge Todd Robinson ruled in favor of Kaji Douša, a New York pastor, in her civil lawsuit against Homeland Security, ICE and Border Patrol. In his ruling, Robinson named NBC 7 several times, writing that had NBC 7 not published its investigation in 2019, the government actions behind the lawsuit would likely have never come to light.
Four years ago, NBC 7 Investigates published a leaked Border Patrol internal brief. At the time, a massive migrant caravan was heading toward the U.S.-Mexico border. Border patrol agents identified 67 United States citizens — including aid workers, lawyers, and journalists — as targets for surveillance.
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Douša watched NBC 7’s report and recognized herself on the leaked list. She had recently been detained and interrogated at the border, and said agents never told her why. Months later, she sued the U.S. government. This week she won.
“It was so amazing,” Douja said via an online video call Thursday morning. “So vindicating! I honestly consider the moment a miracle that he ruled in our favor. It’s very unusual for the government to be — especially law enforcement — to be held accountable for things that they did wrong.”
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One of the biggest findings in the case became public about a year ago: an inexplicable email from a CBP agent to Mexican authorities. It’s a highly unusual action for a Border Patrol agent, something the agent admitted in his deposition. In 2018, the CBP agent asked Mexican authorities to deny entry to 24 people, mostly U.S. citizens, including Douša. The agent has never explained why he sent it.
During a bench trial last year, Border Patrol agents testified they initially believed Douša might be performing illegal marriages for caravan migrants to prevent families from being separated at the U.S. border. That suspicion was ultimately unfounded, but Judge Todd Robinson said that the CBP continued to harass Douša even after it failed to find any wrongdoing, calling the investigation sloppy.
Mohammad Tajsar is a senior staff attorney for ACLU of Southern California. He’s representing plaintiffs in two similar civil suits. Tajsar called this week's ruling a “monumental victory.”
“It’s a rebuke to the federal government and to the CBP in particular,” Tajsar said, “for a rampant, abusive, immoral and illegal surveillance and detention program against its own citizens. So I think we should really celebrate this moment as a moment where an individual fought back against the government for something the government should never have done.”
The judge ordered Homeland Security to communicate with the Mexican government that Doušais allowed to travel to Mexico. She did not sue for monetary damages, but the judge ruled that the government must reimburse her for at least some of her legal fees. The exact amount will be determined at a later date.
Months after NBC 7 Investigates published the leaked list, Homeland Security announced changes to how it investigates and executes alerts on U.S. citizens who cross the border.
In response to NBC 7's request for a comment, a CBP spokesman said the agency does not comment on court cases.
