CBP Recalibrates

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I don’t know whether to be shocked, surprised or skeptical of this week’s reports that Customs and Border Protection is re-examining its policies toward stop-and-search of private aircraft. For now, I think I’ll go with skeptical.

The reasons are several, chief among them being that CBP is a giant, complex and largely opaque bureaucracy of the sort that even the best-intentioned administrator may have little hope of changing in any significant way. The modern security apparatus has become so all-pervasive and monolithic, that it has taken on a life of its own and CBP has been especially unresponsive to queries about its policies and procedures. There’s plenty of recent reporting on this, including this series done by WNYC’s On the Media.

CBP has always been a difficult agency, one that has collected numerous complaints about excessive force or harsh procedures against not just arriving foreign nationals, but U.S. citizens as well. This has gotten markedly worse, or at least the perception of it has, since 911. Vast sums have been thrown at Homeland Security which has duly constructed a security and monitoring apparatus that the Stasi would have envied. Abuses are inevitable.

Last summer, we got a call from an insider at one of the flight plan processing centers who reported—complained, actually—that CBP was contacting them a dozen times a day to query about flight plans that looked suspicious to them. Suspicious why? Because of some sort of profile or route that drug smugglers use, or so CBP thinks.  

In this week’s story, we quoted a CBP official as saying the hit rate on these stops was 32 percent, but he didn’t define what “hit” means. I suspect many of these are drug enforcement busts. One was an FAA violation. We’re stopping airplanes without warrants on fishing expeditions that  net FAA violations?

Maybe I’m imagining this, but I think the country is evolving on the idea of drug enforcement, coming to the realization that it is and has been a colossal waste of time and money. The expenditures hardly represent any worthwhile gain to society, yet enforcement continues because the money still flows and bureaucracies will best do what they always do: sustain themselves without regard to the merit of whatever mission was originally conceived. (I’m writing this in Colorado and we all know that this state has made its views of federal drugs laws abundantly clear.)

One alarming downside of all the Homeland Security money flowing downhill is the sharp militarization of local police departments, which CBP may call on to make an aircraft stop.So the cops show up with a SWAT team equipped with military-grade automatic weapons, body army and other equipment best suited to combat. These teams are being deployed more than ever before and use of excess force is all but unavoidable.

This week’s reporting may suggest—emphasizing the “may”—that our do-nothing Congress has put enough pressure on CBP to actually respond to the complaints. Heretofore, the agency has essentially acted as though the Fourth Amendment doesn’t exist and has steadfastly refused to explain its policies or procedures. So a CBP official actually going on record to AOPA's Mark Baker as admitting there’s a need for self-examination might represent progress. But someone still has to climb the steep mountain of actually changing the culture all the way down into the ranks. There’s always someone who doesn’t get the memo or, worse, just chooses to ignore it. Maybe this represents a sustainable trend, maybe it doesn’t. Let’s just wait and see.

Maybe there's another potential welcome crack on the security monolith. For several months, I’ve been using TSAPre on virtually all of the airline flights I’ve taken. I got into the Global Entry program. This program and others like it represent a return to sanity as it essentially dials back security to pre-911 levels without allowing it to become too casual. In other words, it’s the appropriate level of intrusion and I’ve found that TSA has implemented it effectively. I have no complaints.

So do these two things taken together represent a swing of the pendulum of sorts? Possibly, although the challenge of changing these bureaucracies at the in-the-trench level remains. I’m not convinced that’s doable, but what we’re seeing here is better than a step in the opposite direction.

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Comments (17)

On the 12 step program, 1st step is admitting you have a problem. 11 steps left to go.

Posted by: Alfio Ferrara | May 29, 2014 11:18 AM    Report this comment

"Skeptical" is my view as well. When the VA has widespread corruption that the agency itself isn't even sure of where it starts and ends, it wouldn't surprise me that the CBP is also a machine that it itself can't fully control. But at least they're indicating there is a problem.

Posted by: Gary Baluha | May 29, 2014 12:30 PM    Report this comment

The Constitution must be respected, but nowadays it clearly isn't. Like gravity, it all flows down from the top. I've seen many organizations change almost overnight when the leadership changes.

Posted by: A Richie | May 29, 2014 3:46 PM    Report this comment

Too bad we didn't have a do-nothing congress when the Department of Homeland Security was established. Congress "doing something" created this out-of-control monster. Government has become synonymous with wasting taxpayers' money and violating constitutional rights, and we look to them for relief?

Posted by: Dean Coobac | May 30, 2014 8:25 AM    Report this comment

Out of 474 stops, there have been 8 violations, one of which was a violation of FAA regs, not drug laws. Do the math yourself: it's not even remotely a "...32% success rate..." as touted by Eddie Young. 7 drug violations! Not only is that a less than 1.5% "success rate", but it also exposes the true cost of such useless monitoring and the lengths to which bureaucrats will go to justify their budgets and conceal their lack of effectiveness.

Meanwhile, we can't find a missing airliner with over 200 people aboard, but we have no problem finding, and intimidating, lots of innocent, law-abiding citizens flying their Cessnas.

Posted by: Fritz Stout | May 30, 2014 9:05 AM    Report this comment

Fritz:

The article did not reference 474 stops. It referenced 474 "researched flights," that resulted in 25 stops:

" 'Young said that since Jan. 1, CBP has researched 474 flights and made law enforcement contacts with 25 pilots on the ground, resulting in eight violations: seven criminal and one an FAA violation. 'A 32-percent success rate is not bad in the law enforcement community,' Young said."

On that basis, the cited percentages are correct. 8 of 25 stops resulted in the discovery of a violation - that's 32

Posted by: Tom Yarsley | May 30, 2014 9:26 AM    Report this comment

Yep, it's all in the numbers. That is what we should use to determine whether this is right or not.

What does it matter whether it is 32 percent or not when it clearly is unconstitutional?

The intercepts are clearly an infringement on the rights of not only the immediate "victim" but every US citizen.

Posted by: STEPHEN EGOLF | May 30, 2014 9:46 AM    Report this comment

the lawless nature of the current administration is daily demonstrated. For example, the FAA is told by the courts that it has no authority to regulate drones, or sanction anyone who uses one commercially. They literally declare they don't care what the court says, which is SOP among regulatory agencies these days.

CBP behaves like the fourth amendment doesn't exist, in fact disregards the constitution, and other laws, and spreadeagles innocent citizens on the tarmac at gun point. Is that surprising?

Posted by: Bruce Campbell | May 30, 2014 10:48 AM    Report this comment

While the CBP is busy jacking up pilots there are now more than 2000 illegals crossing the border with Mexico each day, most from countries other than Mexico. Does anyone see the comparative threat here? The problem is the various state and federal agencies including CBP, DHS, etc. are full of ex military Rambo wanabes who think what they do is badass cool, and get off scaring people, and are immune from retribution. We will probably have to wait until they all retire early on disability benefits.

Posted by: Dale Rush | May 30, 2014 11:08 AM    Report this comment

The CBP's 32% success rate is in fact bogus. Unless the CPB can show in court they had just cause for the stop, every one of these 8 violations can and should be thrown out. If all eight of these violations are challenged, then the success rate becomes 0. And what is the cost for each of these 25 stops? I'd be willing to bet it's in the 7 digit range.

Posted by: Jerry Olson | May 30, 2014 1:36 PM    Report this comment

'The Constitution must be respected, but nowadays it clearly isn't. Like gravity, it all flows down from the top. I've seen many organizations change almost overnight when the leadership changes.'

Respect is merely another way of saying it has to be understood and implemented my way and no one else's. It's an interpretative document with phrases like 'more perfect' and 'promote the general Welfare' and 'unreasonable searches and seizures', and it will always be interpreted differently by the powerful and those in the courts at the time. It should never be used, however, for political argument.

And as far as our 'do-nothing' Congress, I beg to differ. I'm seething today at a very good man and leader of the VA ousted by these petulant malcontents to score political points for their own selfish gain. This Congress has been very active - it takes a lot of energy and determination to shut the government down for $27B in the name of the American People, all the while sticking it to the American People for $27B in higher deficit. Says a little about the populace, too.

I'm glad to see that the CBP is examining it's procedures dealing with the pilots and airports. I'm not skeptical, I'm hopeful things will be better in the future concerning our security and freedom to fly.

Posted by: David Miller | May 30, 2014 2:23 PM    Report this comment

First the government is the ultimate deep pocket and can spend decades fighting any legal challange to its authority. I doubt that many of the pilots so wrongly detained have the financial resources to even begin a legal challange, let alone take it to the point of making it a class action suit (I think that involves merging multiple lawsuits so you need multiple people to get involved at the beginning). The second point as to why AOPA is not initiating a lawsuit is also probably correct as well. AOPA is a non-profit advocacy group and not set up for such action. If an aircraft owned by AOPA was detained that could be grounds for such a lawsuit (I think) I would also guess that CBP is smart enough to know what those aircraft are and avoid any such confrontations. Personally I think AOPA is doing all that it can, and should, do about this outrage. They are educating the pilot population and lobbying congress to take action against CBP. Without such action we would never know the magnitude of the problem and that is critical to finding a solution. Sure it would be nice to see more happen but you have to be realistic.

I agree with the way AOPA is connecting public opinion and congressional support against illegal stops or illegal "search and seizure" operations authorized by the DHS's CBP Air and Marine division and other law enforcement agencies. These stops are indeed intimidating. I remember the John and Martha King incident in Santa Barbara. It was due to an error in the system leading to a frightening and well publicized high-handed seizure. I have met the Kings and consider them gentle people but the LEOs could not have known that at the time - the potential for a tragic ending was strong. I would think that all the other "stops" have the same bodily and mental harm potential.

Posted by: Rafael Sierra | May 31, 2014 1:15 AM    Report this comment

AOPA absolutely needs to fight this. I am an AOPA member for one basic reason: advocacy. If it takes litigation, then so be it. I will be happy to contribute a little extra to deal w/this problem.

If you are CBP and reading our comments, I would like you to know that stories like this have convinced me the "war on drugs" needs to end. I used to not worry about it much because I don't have any involvement. Now it seems I should care.

I fly/own an airplane to support my business. If I cannot meet customers because I'm involved in some bogus Rambo operation at the airport, then I don't need an airplane. I will start driving/flying commercial.

And seriously, how big of a threat is GA? I drive an Arrow and it does OK hauling me around but I would not ever consider it a freighter (certainly not on a hot day). I think a pickup/van would have much more utility for a smuggler.

To sum up: I think some over caffeinated cowboys need to focus on the borders and leave the citizens be. Or perhaps they just need new jobs period. I hope change happens soon.

Posted by: Guy Cole | May 31, 2014 2:29 AM    Report this comment

I don't understand why these pilots who were stopped did not exert their fourth amendment right and refuse to allow a search. I know about some of the poor excuses I've read where a man with a disabled son didn't want to traumatize the boy further so he allowed the search. He just taught his son that you should bow down to authority even though our constitution clearly allows us freedom from such actions. Sorry, but lets call it what it is. Some of you are asking for help from AOPA to stop this harassment when the answer is you, and always has been you. You are the one who needs to stand up and fight for your rights. Don't look to someone else to do it for you. I would love to be stopped by CBP. I would offer my paperwork as required and be courteous. That's it. If you want to search my airplane, unless you have probable cause or reasonable suspiction, you can go to hell. Go get a search warrant, if you think you can find a judge to sign one when there is no legal reason to do so. Our forefathers died in wars fighting for our rights. Please, don't let them turn over in their graves.

Posted by: W CIOMMO | May 31, 2014 9:36 AM    Report this comment

0n the OBP's Fourth Amendment controversy, it is more than about anti-terrorism protection practices or illegal border crossing.

After the guns have been drawn, reasons why you may be searched by CBP.

Customs and Border Protection Officers (CBPO) or authorized others must stop contraband, such as narcotic drugs from entering the United States. The narcotics (add human trafficking, Chinese counterfeit and pirated goods) are often found in cargo, but they are also found on passengers or in their baggage (and little airplanes). Sometimes people swallow narcotics or insert them in their bodies (hmmm) to hide them. The only way to find narcotics hidden on or inside a person is to do a personal (cavity) search of the person's clothing and body. Because CBP understands that such searches are unpleasant and invasive (and odorous), they have developed strict guidelines for the conditions under which such a search would be conducted.

Maybe Bill Ciommo is correct.

Posted by: Rafael Sierra | May 31, 2014 12:20 PM    Report this comment

For anyone interested, I suggest a little research around the topic of what's called administrative search doctrine. It's the underlying law that allows TSA to engage in warrantless and suspicionless searches when you go through a security line. It also underlies the probable cause doctrine that allows cops to search vehicles without a warrant.

CBP searches are, I suppose, a variation on this theme. But given the tactical nature of some of them, they seem to be no-knock searches--weapons drawn and full-on tactical.

I think it's time that the pendulum swings back in favor of the citizen and that warrants are required for such searches. As it is now, the judiciary has no role and the citizen no Fourth Amendment right, if the search is no-knock and no judge has determined if the probably cause supports such an action.

Posted by: Paul Bertorelli | May 31, 2014 12:35 PM    Report this comment

The one facet left out of this otherwise good piece is the fact that these stops and searches are frequently being done by CBP, even though the aircraft involved have crossed no border, and indeed have not flown near a border.

When questioned about this by another news organization, a CBP official claimed that his agency was the "guardian of the nation's skies" or something similar. Since when?

Posted by: MICHAEL KOBB | June 5, 2014 3:54 PM    Report this comment

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