US Customs and Border Protection retaliated for years against three whistleblowers who called out its failure to collect DNA from millions of detainees, allowing some violent criminals to evade justice for decades, a federal investigation found.
Fred Wynn, Mark Taylor and Mike Jones faced professional and financial consequences for spotlighting their agency’s refusal to comply with federal law enforcement rules for DNA collection on criminal arrestees since 2009, according to the US Office of Special Counsel (OSC).
“The agency’s noncompliance with the law has allowed subject subsequently accused of violent crimes, including homicide and sexual assault, to elude detection even when detained multiple times by CBP or Immigration and Customs Enforcement (ICE),” Special Counsel Henry Kerner told then-President Donald Trump and Congress in letters on Aug. 21, 2019.
“This is an unacceptable dereliction of the agency’s law enforcement mandate,” added Kerner, who said that the trio claimed CBP had detained but not taken DNA from more than 5 million people over the previous decade.
“I believe that if you could get the totality for that period of time … of how many Americans ended up being killed as a result, I think it probably exceeds the number of Americans who died on 9/11,” a source familiar with the matter told The Post. “So that’s the harm. But we’ll never know the numbers.”
The Trump Justice Department moved months later to broaden the DNA collection rules, which had been narrowly interpreted by officials under former President Barack Obama.
The whistleblowers drew attention to the issue in February 2018 and their division was shut down shortly after, prompting them to go to the OSC.
The independent investigative agency found CBP’s “actions were motivated by the agency’s displeasure with the Complainants’ perceived and actual involvement in bringing to light the agency’s intentional, decade-long failure to implement a law designed to protect public safety,” a Dec. 2, 2021, letter summarizing its findings shows.
An OSC attorney tasked with the case also told CBP’s Office of the Assistant Chief Counsel that it was “approaching the agency for corrective action” on the three whistleblowers, according to a copy of the letter obtained by The Post.
CBP had the burden of proof that it would have taken the actions against the same employees had they not made the disclosures, the attorney said at the time.
Taylor and Jones, who have served for decades in federal law enforcement, also told the DHS Office of the Inspector General and DHS Office of the General Counsel on Dec. 20, 2022, that their employer had gone on to strip them of their badges, firearms and credentials.
Taylor had his retirement coverage and future pension payments taken away as well.
Sen. Chuck Grassley (R-Iowa) in a letter called on Homeland Security Secretary Alejandro Mayorkas last week to end the retaliations and “immediately institute corrective action.” He asked for a response by this Friday, Sept. 1.
A spokeswoman for CBP told The Post at the time that “CBP takes whistleblower protection very seriously and has policies and procedures in place to ensure appropriate protections for such individuals.”
“The Office of Special Counsel (OSC) terminated its investigation into these claims without issuing a Prohibited Personnel Practice Report or seeking corrective action,” she added. “As this case is in active litigation, CBP is not at liberty to provide any specific information or response regarding the characterization of the facts relating to this appeal.”
The spokeswoman did not respond to follow-up requests about the OSC letter calling for “corrective action.” Federal laws do not require a Prohibited Personnel Practice Report before an agency responds to retaliation, a source familiar with the investigation said.
“Since 2006, I’ve never heard of a law enforcement officer being stripped of a gun and a badge without cause,” the source added, saying the agency made an “example” of the trio by placing each in “constructive retirement.”
“Be assured that Sen. Grassley will be closely monitoring for a response as he pushes for DHS to own up for disregarding federal whistleblower protection laws and correct its retaliatory behavior,” a spokeswoman for the senator told The Post. “Efforts to stonewall Congress will not be tolerated.”
A spokesman for OSC declined to comment, citing “ongoing litigation” over the matter at the US Merit Systems Protection Board (MSPB), where the whistleblowers are appealing their case.
“While OSC is not involved in the MSPB case, we are unable to comment so as to avoid the appearance of prejudice to either party while the litigation is pending,” the spokesman told The Post.
All three whistleblowers were members of CBP’s now-defunct Weapons of Mass Destruction Division between 2016 and 2018, which had been tapped for a pilot program to implement the DNA Fingerprint Act.
The law was not interpreted as a federal rule until late 2008 and went into effect the following year. But Obama administration officials later withheld DNA collecting authority from the agency.
“I have decided to reserve to the Department of Justice the authority to allow exceptions to DNA sample collection from criminal arrestees,” then-Attorney General Eric Holder said in a July 22, 2010, letter, following a request from then-Department of Homeland Security Secretary Janet Napolitano.
“There could be situations in which DNA sample collection is not operationally feasible because of sudden mass influxes of aliens without immigration status,” Holder added. “In such cases, it may be that most of the aliens will be held as immigration detainees and will not be criminally charged. Given your intent not to collect DNA samples from immigration detainees who are not criminally charged, this concern does not appear to be an issue.”
Another memo from Holder on Nov. 18, 2010, stated that DHS would also be given more time “to implement arrestee DNA sample collection by its agencies” due to lack of resources.
On Feb. 15, 2018, a DHS employee who worked with the whistleblowers highlighted the wrongdoing in DNA collection to officials at agency headquarters.
One of those officials was Miles Taylor, who authored articles and books against Trump administration policy under the pseudonym “Anonymous” while serving as chief of staff to DHS Secretary Kirstjen Nielsen.
The email, which the whistleblowers prompted, eventually led to the closure of the WMD division, and a conference call was held months later to discuss ways to gain public support for lessening or ending the program.
“We’ll pull this poor, 70-year-old lady and collect DNA from her to generate opposition and so forth,” a source familiar with the April 18, 2018, discussion characterized it to The Post.
All three whistleblowers later suffered professional consequences and reputational harm for disclosing the wrongdoing, including the loss of performance awards, and were taken off high-profile projects involving enforcement against MS-13 gang members, the Special Counsel found.
Jones, who served as acting director of the program, was also passed over for the director position at a new office conducting similar law enforcement work called the Operational Field Testing Division.