There has been a kerfuffle at the border regarding the Texas National Guard (TNG) using basic law enforcement information gathering techniques to identify, disrupt, and arrest alien smugglers at the border. Aside from the Lying Press making accusations about the military spying on Americans, the information gathering operation by the TNG was completely legal, was conducted in accordance with the Constitution, and in compliance generally accepted law enforcement practices.
Specifically, TNG soldiers on State duty as part of a dual mission, the enforcement of Texas laws and repelling an invasion of the United States, used a publicly available telecommunications application, WhatsApp, to monitor alien and drug smuggling organizations and the participants in their illegal activities, including those who benefited from assistance of those organizations, the illegal aliens. Nothing illegal there for either a law enforcement organization or the TNG acting as it is, part of the State of Texas, not the U.S. military.
Much of the problem is due to the rather ridiculous nature of the National Guard, which are nominally a form of State militia, though not the official State militia, under the command of an officer appointed by Governors, and officially a State organization unless called into Federal service by the President, but in reality merely a branch in training and organization of the U.S. Army. But the National Guards of the several States conduct all sorts of missions unrelated to military actions, frequently related to law enforcement or natural disaster relief, so the National Guards are in a grey zone, not always the military, but sometimes the military.
In the case of the current TNG deployment to the border with Mexico, their activities include making arrests, gathering information about the ongoing invasion of the United States, and building fortifications on the border. The TNG also patrols the Rio Grande, blocking the invasion, as well as rescuing illegal aliens in distress on the river and the land. Since they are not on a Federal mission, the TNG is acting under State authority and therefore not governed by Federal regulations or even laws regarding the use of the military in the United States, such as the Posse Comitatus Act.
But the Lying Press seem to think that gathering information about the crimes committed when illegal aliens enter the United States is some sort of infamous act prohibited by law. Only later do you learn it is just about regulations, not the law. The real objection appears to be that the TNG was gathering useful information about alien smuggling organizations.
An investigation by Military Times and The Texas Tribune has found that Texas National Guard leaders disbanded Operation Lone Star’s intelligence wing after whistleblowers reported the WhatsApp surveillance, which targeted migrant groups to track them through Mexico, because they believed it violated long-standing rules against state-run spy operations. During the same period, another team from the intelligence directorate allegedly sent classified FBI intelligence to their Texas Guard colleagues in an apparent violation of federal secrecy laws, according to an internal incident report.
Texas Guardsmen Spied On Migrants Via Whatsapp, Mishandled Secret Docs, by Davis Winkie and James Barragán, The Texas Tribune, August 29, 2023
Despite the hand wringing and emoting by the Lying Press, the whole story is about one TNG official who infiltrated the Whatsapp chat groups used by alien smuggling organizations and illegal aliens. Nothing illegal about that. It is something that law enforcement agencies in the United States do every day on Facebook, Telegram, WhatsApp, Signal, etc. Criminals frequently organized their criminal activity on such applications and if they allow someone into a chat group, that is on them. It is not illegal for law enforcement to join or even misrepresent themselves to join.
In this case, the TNG was monitoring criminal activity in an application group that allowed a TNG officer to join. Nothing illegal there. It was as if a local police department monitored the private Facebook group that communicated about their organized shoplifting conspiracy. So long as the person was allowed in, the information is fair game for monitoring and use. Pro tip, if you are engaged in planning criminal activity, such as entering the United States illegally, don’t plan it on a cell phone app.
Here is what happened:
But all accounts agreed on one thing: Pierre carried a cellphone that had access to WhatsApp chats from migrants and smugglers. Many migrants use the encrypted messaging app to communicate internationally during their journey to the United States.
In an email to Tyler, Rios claimed that Boates, the Operation Lone Star deputy commander, purchased the phone for Pierre.
The WhatsApp chats were in English, Creole and Spanish, later emails claimed.
Note the mention that the TNG was exchanging the information he obtained with U.S. Border Patrol (USBP) agents assigned to intelligence gathering about alien smuggling organizations and illegal aliens crossing the border. So, the TNG was only doing the same thing that U.S. Customs and Border Protection (CBP), of which the USBP is a component, was doing, gathering and analyzing intelligence about criminal and national security threats to the United States and Texas. In fact, CBP has its own intelligence office to gather and analyze information related to protecting the homeland, as does the Department of Homeland Security (DHS).
The most egregious part of this story was not that the TNG was gathering information, but that ICE SVU was presented with actionable intelligence that could lead to successful investigations of the alien smuggling cartels and ICE SVU refused to cooperate with and use that information.
When officers from the Texas National Guard showed up to their 7 a.m. meeting with federal agents from Homeland Security Investigations in El Paso, they didn’t arrive empty-handed.
Six military intelligence officials turned over a list of names at the February 2022 meeting. The Texans were part of an intelligence directorate supporting Operation Lone Star, Gov. Greg Abbott’s state-run border mission. The officers, which included the group’s top two leaders, told federal agents they’d secretly infiltrated invite-only WhatsApp group chats filled with migrants and smugglers and wanted their help investigating the targets they’d identified, according to a sworn statement attached to a whistleblower complaint filed later that month.
The Homeland Security officials in the meeting rebuffed the Texans on the spot — with one official saying that they were an investigative body and “not an intelligence agency,” the whistleblower recalled.
News flash to ICE SVU, gathering intelligence is part of conducting an investigation. Consequently, it is quite strange that ICE SVU agents would claim that ICE SVU does not collect intelligence, as ICE SVU has their own intelligence office. Here is their mission statement:
The HSI Office of Intelligence uses the HSI Framework for Criminal Analysis to conduct sophisticated and complex analysis of criminals and their networks in support of HSI investigations and investigative priorities. The Office of Intelligence produces timely, comprehensive and accurate criminal analysis that enables criminal investigators to identify, prioritize, disrupt and dismantle transnational terrorist and criminal networks, and any other individual or organization that threatens national security or seeks to exploit the customs and immigration laws of the United States. The Office of Intelligence is also home to the agency’s protective intelligence team, classified communications program and emergency management and continuity functions.
Office of Intelligence, Homeland Security Investigations
Instead of thanking the TNG for their work and using that information to identify, investigate, and disrupt alien smuggling organizations, ICE SVU scurried away, not wanting any information that would result in the arrest of illegal aliens and alien smugglers.
But what else is expected from an agency that does not want to perform its function?