The Activist Question

Tensions between humanitarians and federal officials are on the rise along the border

This is a place of ghosts. Ask anyone who walks these trails, in the bare-knuckle desert.

Here among high scrub, south of Arivaca, sunlight glances off water bottles, candy wrappers, tennis shoes, rosaries and a tiny picture of the Virgen de Guadalupe in yellowing, cracked plastic. Such things are hastily abandoned in the headlong passage between life and death, the fate of their owners unknown.

Officially, migrant deaths here each year number in the hundreds. Humanitarians who hike this country call those numbers bullshit. They say the desert is haunted by thousands of unfound dead people. Out here, a corpse gets about two weeks, tops. By then, sun and scavengers have sealed the deal.

A handful of rescue volunteers have come across bodies, but everyone has seen the bones. And in a place where mortality crunches underfoot, folks can get a bit touchy.

Take the feds and the humanitarian outfits. They've never shared much in the way of mutual adoration. Sure, everyone pledges bonhomie—each appreciates the other's "tough job" or "dedication" or "good intentions." But those are just words muttered to reporters. As it happens, the thing keeping them at odds also binds them together: death all around. Death behind that shrub or in that wash, or settled in the shade of that half-buried boulder.

Death is the third partner in a relationship that nobody wants. The humanitarians provide assistance, food and water to migrants. The feds mostly leave them alone to do so.

Until recently.

Over the past couple of years, federal agencies ranging from the U.S. Fish and Wildlife Service and the Bureau of Land Management to the Border Patrol have been putting activists under the gun. Consider Kathryn Ferguson. In January 2008, she was arrested while checking migrant trails with the Samaritans group, and held roadside for several hours by Special Agent Bob Ruiz of the Bureau of Land Management. According to Bart Fitzgerald, BLM special agent in charge for Arizona, Ferguson was detained for "acting mysteriously." She was cited for creating a nuisance. On the eve of her trial, that charge was mysteriously dropped. (See "Requiem for an Arrest," Oct. 9, 2008.)

In February 2008, No More Deaths volunteer Dan Millis was cited for littering after he left water jugs for migrants on the Buenos Aires National Wildlife Refuge south of Tucson. Two days earlier, he'd come across the body of Josseline Jamileth Hernandez Quinteros, age 14. Josseline made it all the way from El Salvador before death caught her here.

Seven months after Millis found her, he was convicted.

In August 2008, the No More Deaths camp near Arivaca was raided by two dozen Border Patrol agents, some on horseback. They had tracked two migrants to the compound, resulting in an ugly confrontation lasting nearly two hours. The migrants were taken into custody and probably deported.

Water stations long maintained on the Tohono O'odham Nation by a tribal member are removed. The man, a retired member of the military, suspects Border Patrol pressure on the tribe to shut down his stations.

In December 2008, No More Deaths volunteer Walt Staton, like Millis, was cited for littering on the Buenos Aires National Wildlife Refuge. It was a Border Patrol agent who spotted Staton putting out sealed water jugs and alerted refuge officers.

These showdowns aren't limited to Arizona. Earlier this year, Border Patrol agents near San Diego detained a Methodist minister attempting to give communion through the border fence. It made great material for the nightly news.

But to Bill Walker, it's all a bit perplexing. He's the Tucson attorney who handled Ferguson's case, and currently represents convicted litterers Millis and Staton.

"There is clearly a pattern of increased activity by the government against humanitarian groups," Walker says. "I can't understand why. I see no justification for it. It diverts significant resources from the prosecution of other crimes."

He estimates the federal government spent more than $50,000 to convict Staton. Even more troubling, says Walker, is that Staton's case represents a clear escalation. "Just to give you an example of the heightened scrutiny, Dan Millis was prosecuted first, in front of a magistrate for an administrative violation. They charged him with littering, and that's (up to) a six-month penalty. The magistrate in that case found him guilty but suspended the fine (and sentence)."

He says the government had an attorney and three agents working the Millis case, "and must have spent $20,000 or $30,000.

"Now they charge the second guy, Walt Staton, and they up the ante on it. They don't charge him with littering; they charge him with 'knowingly littering.' That means the potential penalty for him is a year in jail. A prosecutor, the agents that have to come in, empanelling a jury—all this stuff to prosecute a guy for putting out water in the desert for migrants."

Wyn Hornbuckle is a spokesman for the U.S. Attorney for Arizona. He says it's impossible to calculate the costs of convicting Staton. "But as for the merits of this particular case, having a unanimous jury verdict speaks for itself."

Here's what it says: Heads-up, all you potential litterers!

Confrontation has taken a different tact in California. Friendship Park is a venerated border meeting ground where binational friends and family have long shared chats or picnics through the fence, in the San Diego area. At least that's how it was until February, when Border Patrol agents sealed off the park for construction of a secondary border wall.

The closure prompted a protest by more than 100 park fans, who strode right into a barricade of Border Patrol vehicles. The scent of violence was heavy—and before it cleared, a Methodist minister named John Fanestil had been detained. During the protest, he led an ecumenical service, complete with a choir.

Fanestil says Border Patrol officers unnecessarily ratcheted up tensions during that bitter standoff. "They're claiming the land between those two walls as their 'theater of operations,'" he says, "and using the same tactics they've been trained to use on people entering the United States illegally from Mexico. But all of a sudden, they aren't facing south; they're facing north, and their tactics are really beyond the pale for dealing with nonviolent activists."

He recalls one female agent who threatened to spray a protester in the face—although the man was on crutches. "She told him to go ahead (and try to reach the park), because she was a pretty good shot."

A video of the incident shows the Border Patrol pushing Fanestil back as he tried to serve communion. "There's also an agent pointing a gun at one of our guys and saying, 'Go ahead, make my day,'" he says. "It was one of those kinds of things."

But Fanestil believes there's a darker subtext to this melee.

"The Border Patrol is really trying to lock down the borderlands near the fence," he says, "and prohibit access of any kind. In fact, they refer to people who would enter that area as 'clutter.' Their dream is of an uncluttered theater of operations."

Back in Washington, D.C., Assistant Chief Mike Reilly of the Border Patrol dismisses Fanestil's claims. "At the Border Patrol Academy, we get riot-control training," he says, "and the rest of it is he-said, she-said stuff."

Reilly also denies that these incidents are part of a larger crackdown on activists. Instead, he argues that an increased Border Patrol presence and intensified security measures are simply pushing everyone closer together.

"We're just doing our job," he says. "In the process of securing our nation's border, with the fence and everything else, there are other issues that come up. And because illegal immigration is out there in the media, it seems that more people are saying we're against them. But we're not against anybody. There's no policy to take a hard stance against any type of humanitarian group."

Chad Berkley walks the migrant trail, and he totes a few ghosts of his own. Lanky and intense, Berkley spent nine years with the military, the last one with a combat crew in Iraq. There was a tremendous roadside bomb, and a lot of his buddies never came home. Berkley took concussion damage to the brain. That, he says, has played hell with his concentration skills.

The year since deployment has been about getting divorced and pulling himself back together. A solid night's sleep is still wishful thinking. But by day, he now roams these hungry hills, on the far outskirts of Arivaca, under the banner of No More Deaths.

"At first, I felt like I was back on patrol in Iraq," Berkley tells me, "always looking around."

But he came here to bury Iraq, not relive it. "I want to do something altruistic," he says. "I want to put all the skills I learned in the military to something positive. This isn't necessarily a war zone, but it's a similar militarized zone."

He pauses, glancing at the calloused land. "I have a hard time being back in the world," he says. "So many people are dying, and so many other people don't care."

Then Berkley returns to patrol. "Agua!" he barks as we walk. "America! Ayuda! Agua!"

Later, we pile into a Suburban with the No More Deaths crew, and rumble back to the camp Berkley shares with a dozen or so volunteers. The camp entrance is marked by a rusted car door, and secured by a nylon rope strained between two steel posts. Beyond are a smattering of tents, a pair of semi-gutted travel trailers, and a decrepit motor home with its sliding window askew. A well-used fire pit smolders to one side.

Stints here vary. So do the residents. Most are college students, volunteering for a week or two of hot, remote duty. Some, like Berkley, sign on for a month. It's all decidedly low-budget, and deceptively well-disciplined. Each day, soon after sunrise, small groups head out into the deep desert with topographic maps and water jugs. They place water at precisely chosen spots, returning with empties to be disinfected and reused.

Other trail debris comes back, too. "If anything, I'd call us a net-delittering operation," says camp coordinator Steve Johnston. He's a jack of all trades, and once schmoozed as a publisher's publicist; he still can't resist a snappy line. Now in his early 60s, he also runs an amiably tight ship.

This place is part summer camp and part Reality 101. After all, you can always stumble across a body out there. Dan Millis certainly did. Johnston pulls up a plastic chair and hands me a small card. On one side is a prayer. On the other is a photograph of Josseline, in a church and very much alive. Pretty, petite, dark, somber. She could be any moody teen you'd see at the mall. But you won't seeing her there.

Here's how Steve Johnston tells it: "Her parents live in L.A. They've been there for some years. So she and her younger brother were traveling to L.A., to meet up with her parents. On the way, she got injured or sick, I don't know which, and they left her. The brother continued. When her brother got in touch with the parents, they called the Mexican consulate, and the consulate called (immigrant-rights group) Derechos Humanos, and Derechos Humanos called us. We started looking for her, and the Samaritans did as well.

"We were looking for her around Ruby Road. That's where we thought she was, because that was the best information we had. But she wasn't there."

He pulls out a map. "We were looking here," he says, pointing, "and she was over there. She was in between two trails. We walked within a quarter of a mile of her. It was February—cold, cold. Froze every night. She had been alone out there for two weeks, with no food, no water."

Millis found the body while hiking a shortcut. It has messed with him.

"She had taken off her shoes," Johnston says. "When she was found, her feet were in a little puddle of water, and her shoes were neatly next to her."

Steve Johnston is not a quiet man. But quietly, he tucks away the map.

Any policy driving desperate people into the desert is wrong, Johnston says. But he doesn't blame the Border Patrol, or at least not the guys he sees out here.

"This is not between us and them," he says. "They've got their job to do."

Of course, that doesn't mean agents can't get a bit, well, ornery. He recalls a few years ago, when they'd park up in the hills. "They'd turn deer lights on the camp and keep them on," he says. "They'd set up speakers on their trucks and blast rock 'n' roll at us. It was like Guantanamo."

These crude psych-ops occurred under the reign of Tucson Sector Chief Michael Nicley, who openly disdained the activists. "They feed them, give them water and let them loose," he told the Tucson Citizen in 2005. "They believe that's a humanitarian effort. I believe that turns into a rescue for me later on."

When Nicley retired in 2007, the humanitarian groups figured his replacement could only be an improvement. That successor was Robert Gilbert, formerly head of the El Paso Sector, a friendly fellow who seemed genuinely interested in a little give-and-take.

At that time, Mark Townley was president of Humane Borders, a group that maintains some 70 desert water stations, including three on the Buenos Aires National Wildlife Refuge. He quietly helped arrange a series of meetings between activists and the new chief. And soon, Gilbert was touting these parleys to the media. "I thought it would be best if everybody gets together, we sit at a table, look at each other in the eye and say what can we do to make this border safer," the chief told the Arizona Daily Star in May 2007. "I think anybody who is out there trying to save a human life, I think that is a great thing."

But things didn't quite work out so well. After about a year, the activists pulled out, ending what Townley characterizes as an exercise in frustration. He says their concerns—such as getting food and water to migrants awaiting Border Patrol transport—received lip service from Gilbert, and little else. The same happened with abuse reports, he says. "But what really ended the meetings was when Gilbert was quoted in the paper saying what wonderful communication and relationships he had with our groups. It really wasn't the case.

"It was wonderful from his side, perhaps. Not only was it a PR plus for him, but it was also filling a spot on a PowerPoint presentation for his management. He could go to his boss and say 'Hey, see the wonderful things I'm doing?'

"But we weren't getting anything," Townley says. "If anything, we were losing ground—we were losing the ability to give some people aid who needed it."

Agent Omar Candelaria is a spokesman for the Border Patrol's Tucson Sector. He says the spirit of these meetings did result in better access to the Mexican consulate for detainees, and a video detailing their rights. The video plays around the clock in the detention centers. "I can't say those have come specifically from the meetings," he says, "but they are things that have happened in the recent past."

Still, Candelaria can't cite a single point raised by the activists that's found its way into sector policies.

In fact, just a few months after those meetings ended, the teetering relationship took a big tumble, and Gene Lefebvre had a front-row seat. He's a retired minister from the Shadow Rock United Church of Christ in Phoenix, and a No More Deaths co-founder. Late in the morning of Aug. 27, 2008, he was out checking migrant trails near Arivaca when he got a call that agents were massing at the camp. By the time Lefebvre got there, he says, they "had the camp surrounded. There were about 25 agents, and they were working through the brush on every side."

Among them was another sector spokesman named Mike Scioli. "Horse-patrol agents had followed foot-sign up to the No More Deaths campsite," Scioli tells the Weekly. "When asked if there were any (migrants) there, they said no. A search of the area discovered the two individuals."

Therein lies a big deal: According to No More Deaths protocol, volunteers must declare if migrants are in the camp, to avoid charges of harboring.

When this was mentioned to Scioli, he backtracks, suggesting that the volunteers told agents "they didn't know" if there were any migrants at the camp. They might have been confused, he says, because "a lot of people had just woken up from being in a tent."

It was 11:15 a.m. when Gene Lefebvre received that call from a young woman at the camp. And wakeup time at the No More Deaths compound is 6 a.m., sharp.

Agents later found a marijuana bale in the camp's vicinity, though in that heavy trafficking area, they've never implied that it was connected to No More Deaths volunteers.

Regardless, Lefebvre says he was twice read his Miranda rights during the confrontation—a fact confirmed by several witnesses. And he directly contradicts Scioli about the migrants. "When agents were questioning me, I asked them, 'What did (the young woman) tell you when you came into camp regarding whether there were migrants?'" Lefebvre says. "And the officer in charge confirmed that she told him there were two people there."

Also visiting the camp that day was Dr. Miguel De La Torre, a seminary professor at Denver's Iliff School of Theology, and several of his students. "What I found frustrating," De La Torre says, "is that here we were providing medical attention, providing food and water for people in the desert, and that somehow, this is a crime. As Christians, we're practicing our faith, and we're detained for it in this country. When a law says that we can't give basic medical attention to somebody, then that's not a law."

Stand at the camp's edge and throw a stone west about 50 miles, and you might hit one of Mike Wilson's water tanks out on the Tohono O'odham Reservation—or at least where those tanks used to be. For nearly a decade, Wilson, a tribal member and retired U.S. Army Special Forces master sergeant, has risen before dawn to haul water from Tucson out to the rez. But the same month of the camp raid, he was approached by a Tohono O'odham police officer while showing his water stations to seminary students led by De La Torre and the Rev. John Fife of Tucson. A co-founder of No More Deaths, Fife is a charter member of the humanitarian-assistance movement.

During that encounter, Wilson was ordered to pull the stations, and his guests were banned from the reservation for life. He says the moves were directed by Baboquivari District Chairwoman Veronica Harvey, who didn't return a phone call from the Weekly seeking comment.

But Wilson suspects that federal officials may have swayed Harvey's decision. For him, Walt Staton's littering conviction only stokes those suspicions. "My fear is that a precedent has been set," he says. "I think that if the Border Patrol can put that kind of pressure on Fish and Wildlife, they might try to do the same thing with the Tohono O'odham police. Tohono O'odham tribal lands are first and foremost federal property. That's why the Border Patrol is out there now."

Down on the Buenos Aires, manager Mike Hawkes says he's not priming for any fights. But he does take a hard line on do-gooders like Staton putting out water jugs. "It's illegal to litter on the refuge, basically," he says. Nor will No More Deaths be getting any permits to make it legal. Humane Borders already has its stations out there, "and we think we have a good coverage with that."

Hawkes says he's not sure how much the water stations help, anyway. "Most of these folks who die are dying of exposure, because it's either too hot or too cold. Some of them have been found dead in water tanks (for wildlife and livestock). If people are too young or too old or not healthy enough to be making that trip, then they probably shouldn't be making that trip."

But to Jose Garcia, Hawkes is rolling the mortal dice. Garcia is a professor of government at New Mexico State University who specializes in border-security issues. He says the first migrant death at Buenos Aires after Staton's conviction will be telling. "I can't imagine how the refuge justifies taking a harder line, since you would think that human rights issues would trump littering. I would think the first death will be enough to attract the attention of the president of the United States."

Even the Fish and Wildlife Service seems confused about its policy regarding those water drops. Just this past November, for instance, Deputy Interior Secretary Lynn Scarlett wrote a memo suggesting that land managers could make their own call if certain steps were followed—including notification "of the appropriate Border Patrol sector chief."

However, Fish and Wildlife Service officials say the policy is simple: No more refuge water stations. Confusing? Hell yes, says the Rev. Robin Hoover, founder of Humane Borders. Hoover recalls a conversation between himself, former Buenos Aires Manager Mitch Ellis, and a lawyer in the agency's Albuquerque regional office named Justin Tade. "Tade flat-out told me not to apply for a new permit, because it would be denied," Hoover says. "Then he said, if asked, he would deny ever having that conversation."

Contacted by the Weekly, Tade declined to comment. But the conversation was confirmed by Ellis, now project leader for the Southwest Arizona National Wildlife Refuge Complex in Yuma.

Later, I call Tom Harvey, Fish and Wildlife's refuge supervisor for Arizona and New Mexico. In our conversation, he emphasizes the refuge system's wildlife-comes-first mission. "It's a balancing act," he says, "and the recent littering citation with the No More Deaths organization is unfortunate. But the backdrop for that whole thing is the more than 40 tons of trash per year annually that our volunteers and our refuge staff have to remove. We're just saying that if we're going to keep this refuge free of trash, we have regulations that we have to implement and abide by."

In response, No More Deaths has issued an ultimatum: If no agreement is reached, they'll again start putting out water on Buenos Aires, consequences be damned. And Hoover says he'll ask for more permits. If his requests are denied, he's ready to raise hell.

As for the Border Patrol agents who tipped off refuge officers in the Staton case, Hawkes says he isn't aware of any interagency agenda. "I do know that, by necessity, we do work very closely with the Border Patrol—they coordinate very closely with our law-enforcement staff on a whole host of issues related to drug-smuggling and illegal immigration."

Hoover considers Hawkes' stance a deal with the devil. He recalls when the agency denied his group's request to put out water stations on the Cabeza Prieta National Wildlife Refuge, near Ajo. That led to a wrongful-death lawsuit, after 14 people died there in 2001. The judge ruled that the land manager had discretion to approve water stations if he so desired.

"If I were writing this story, I would say, 'Here we go again,'" Hoover says. "A local land manager denies permission to put out water, and we've seen what happened before, when we had 14 deaths in one day."

A few days after my visit to the camp, I sit in a downtown Tucson coffee shop with Margo Cowan, an attorney who's represented immigrants and groups like No More Deaths for years. Just down the street are all the trappings of power—the city building, county headquarters and the federal courthouse where Staton was convicted.

Even after all these years in the trenches—and all the failed attempts at border-policy reform—Cowan remains an optimist. She sees the tide turning with the new administration. And she believes things will change when word of the recent law-enforcement brush-ups reaches new Interior Secretary Ken Salazar—who oversees the Fish and Wildlife Service—and Janet Napolitano, our former Arizona governor who now heads the Department of Homeland Security, which includes the Border Patrol.

"I'm surprised that the United States is digging in on their position about humanitarian assistance," Cowan says. "But I'm sure Interior Secretary Salazar would not support this if he knew about it. Certainly, Gov. Napolitano wouldn't support it. She understands clearly what death in the desert is all about."

For a moment, we sat, inexplicably, in silence. Perhaps there are ghosts even here.