The Buddy-less Study? Proposal to Study a Possible U.S. Border Fee Gets Another Opponent

Keith White on growing Congressional opposition to a White House proposal to study the impact of adding a new crossborder fee.

By Keith Edmund White

Editor-in-Chief

Bill Owens (D-NY) has pledged to "explore all legislative options" to prevent a proposed DHS study on the "feasibility and cost" of a new border fee at northern and southwestern U.S. border crossings.

Who thought a boilerplate study would generate such buzz?

But when the study relates to slapping a new fee on crossborder travel between the United States and Canada, pushback is to be expected.

BTB 2.0? Stakeholders Crowdsourcing Site Promises Increased Collaboration and New Ideas for BtB and RCC

From BtBObserver, who reports on the new BtB crowdsourcing site Idea Scale: 

Have an idea to make the Canada-U.S. economic and border relationship run smoother? Crossborder stakeholders want to hear your ideas. And they may just shape the work of the Beyond the Border (BtB) Initiative and the Regulatory Cooperation Council (RCC).

Pacific Northwest Economic Region (PNWER), Canadian American Business Council, U.S. Chamber and other US-Canada partnering organizations have launched Idea Scale, a crowdsharing website where crossborder enthusiasts can post and comment on ideas to improve the Canada-U.S. regulatory relationship.

Check out Idea Scale here.  Whether sharing ideas or just monitoring the mystical art of crossborder regulatory transformation, the site is definitely worth regular visits.

More on DHS's New FY13 Budget

By Keith Edmund White
Editor-in-Chief

More resources on just what DHS's budget, which became official yesterday when President Obama's signed the Fiscal Year (FY) 2013 Continuing Resolution appropriations bill.

(Note:  Author appreciates readers bringing the documents cited below to his attention.)

Readers will find three primary documents below outlining the DHS budget for the remaining 6 months of Fiscal Year (YR) 2013.

9th Circuit Says No to "Computer Strip Searches," Narrows Border Search Doctrine, and May Change the Canada-U.S. Security & Trade Relationship Too

By Keith Edmund White

CrimPro meets border policy courtesy of child pornography.  Why an apparent court victory for digital privacy rights might be a 21st century Trojan horse, and its impact on the Canada-U.S. border security and trade relationship. 

The 9th Circuit Court of Appeals held today (United States of America v. Cotterman) that reasonable suspicion is needed to forensically examine electronic devices seized during a border search (and not risk having any incriminating evidence kicked out of court).

OK, boiled down:  The 9th put up red light to a "computer strip search" without reasonable suspicion.

Might not sound like a big deal, but this decision reflects an interesting development in the suspicionless searches of personal property (yes, there are times law enforcement officers can search your stuff without showing an iota of cause).

Oh, and it might just impact America's border security and trade policies.

Disclaimer:  I haven't fully digested, let alone have the expertise of others, like the Brennan Center for Justice, to fully assess this case.  The post,  found after the jump, simply highlights:

• even a cursory read of the decision's summary suggests that this decision reflects something more complicated than a 'win' or 'lose' for digital privacy rights, and 
• perhaps the most important aspect of the case, whether giving heightened protection against computer strip searches impacts U.S. border security, gets shockingly short attention by the Court.   

The Nation, Drama-Free Reporting, and U.S. Northern Border Security

By Keith Edmund White

Editor-in-Chief

A response to Todd Miller's recent piece in The Nation, and the dangers of histrionics in writing about the Canada-U.S. border.

Todd Miller paints an fascinating, if incomplete and somewhat falsely alarmist, view of America's emerging approach to border security.  

Miller deserves credit for highlighting what could be a troubling trend in border arrests--only 1 percent of border arrests (in Rochester) being of a person of "fair" complexion. 

Sure, the numbers sure seem cherry-picked, but Miller does deserve credit for highlighting what may be a serious problem of race and security border.

It's the rest of the article that has me concerned.

Walling the Border...What?

From Miller's article:

Bert Tussing, US Army War College Homeland Defense and Security Director, realizes that when people think of border security, what immediately comes to mind is the US-Mexico border. After all, he is speaking in El Paso, Texas, where in the early 1990s the massive transformation and expansion of the border enforcement apparatus was born. Operation Blockade (later renamed Operation Hold-the-Line) became the Clinton administration’s blueprint for the walls, double-fencing, cameras, sensors, stadium lighting and concentration of Border Patrol agents now seen in urbanized areas—and some rural ones as well—from Brownsville, Texas, to San Diego, California. Tussing believes that this sort of intense surveillance, which has literally deformed communities throughout the southwest, should be brought to the northern border as well.

My thoughts:  Before we start seeing dysoptian images of America turning into West (or East?) Berlin, let's take a beat. Canada and America's trade relationship, wherever walls may or may not be, can't afford further delays at the border. And there are some areas--the Great Lakes, for example--where I don't think anyone would mind greater scrutiny of the goods that are traded and the people who may be crossing back and forth. Whether organized crime or terrorism, this seems like smart policy.

The Private-Public Hybrid to Border Security: An Issue that Merits Our Attention

From Miller's article:

A former Marine with close-cropped brown hair, Tussing has a Napoleonic stature and despises being stuck behind a podium. “I kind of like moving around,” he quips before starting “The Changing Role of the Military in Border Security Operations,” his talk at last October’s Border Management Conference and Technology Expo.  

Perhaps Tussing realizes that his audience holds a new breed of border-security entrepreneur when his initial Army-Marine joke falls flat. Behind the small audience are booths from seventy-four companies selling their border-security wares. These nomadic malls of the surveillance state are popping up in ever more places each year. 

My thoughts:  Now this is interesting, and if Miller provided a bit more substance could have made a great article. What are the trade-offs with taking a hybrid public-private approach to border security? Are we paying more for a quick, but lower quality security net? Miller gets credit for implicitly raising these questions.

The Constitution-free zone:

From Miller's article:

That zone—up to 100 miles from any external US border—is the area that the Supreme Court has deemed a “reasonable distance” in which to engage in border security operations, including warrantless searches. As in the Southwest, expect more interior checkpoints where federal agents will ask people about their citizenship, as they did to Vermont Senator Patrick Leahy in 2008. In the zone, you have the developing blueprint for a country not only in perpetual lockdown, but also under increasing surveillance. According to the ACLU, if you were to include the southern border, the northern border and coastal areas in this zone, it would contain 200 million people, a potential “border” jurisdiction encompassing two-thirds of the US population.

My thoughts:  First, I have some real concerns with Miller running with the ACLU's label of "constitution free" border.  My off-putting ranting aside about the shallowness short-form reporting requires aside, I have a feeling this border zone doesn't allow the local cops or FBI of 200 million people to endure warrantless searches at the drop of a hat (err...badge).  But  I'll get back to this after consulting the ACLU and any other resources that might around.

Conclusion:  "Drama-Free" Need for Numbers & BTB

If the United States has been on a spending bulge to secure our northern border, the rational approach would be:  (1) look dispassionately at what has resulted from this security push and (2) are we getting our money's worth.

But budget and policy analysis aside, it seems that--at the very least--the United States, if it's--in Miller's view--is throwing money at private contractors, planning to seal off our nation, and taking away almost half of the public constitutional rights, shouldn't we at least put a tiny fraction of that money into ways to improve Canada-U.S. trade so that we can create more jobs.

Oh, and we already have a blueprint for that:  the Beyond the Border Initiative.

If I'm going to live in a "constitution-free" zone, might as well get the advantage of cheaper pork at the market, a job to buy it, and then the surplus income to buy (another) flat-screen TV.

Presidents of a Canadian & U.S. Association of CEOs Praise BTB, Offer Roadmap for Further Progress in Canada-U.S. Economic Relations

As noted by Beyond the Border Observer, leaders of two top business associations praise Beyond the Border and suggest steps Canada and the United States can take to improve their economic relationship.

Check out the full The Hill editorial by John Engler and John Manley here. 

 For a quick summary, read below or check out Beyond the Border Observer:

They [Engler & Manley]...stress that “a lot more needs to be done to transform bottlenecks at the border into gateways for the legitimate flow of people and goods.”

On the top of their list? “[S]tronger regulatory cooperation where it makes sense.”

And they also urge both nations “to move beyond pilot projects, feasibility studies, and regulatory reviews to fuller implementation – transforming words and good intentions into more concrete and longer-term action.

Finally, Engler and Manley urge the countries to move forward on important cross-border infrastructure projects, Keystone XL and a new bridge between Windsor and Detroit, and also impose deadlines for parts made in one country and assembled in the other to “travel without interruption… .”

Beyond the Border Meat Pre-clearance Prong Hits a Snag

By Keith Edmund White, Editor-in-Chief

The after-effects of XL Foods E. coli-related beef recall are still being felt, with the Beyond the Border (BTB) pilot pre-clearance for meat shipments between Canada and the United States on ice while the U.S. reviews it's food-safety measures.

And the XL Foods beef recall, which lead to four Canadians getting sick, has given the advocacy group Food & Water Watch powerful ammunition in lobbying against the pilot program.  

The tension is clear:  while easing restrictions at the border saves $100 an hour per driver for Canadian meat shippers, concerns over eliminating U.S. safety inspections for Canadian meat post-XL Foods has frozen this aspect of BTB for the time being.

The XL Foods E. coli outbreak highlighted some very troubling aspects of the Canadian and American meat 'safety net', in both the meat-processing and contamination response consumer protection safeguard systems.  

Perhaps the pause in the pre-clearance program will allow business groups and advocacy groups--like the Food & Water Watch organization--can work together to ensure meat screening systems in both countries are equally robust, ensuring a safe and efficient flow of products throughout Canada and the United States. 

CBC reported yesterday on Food & Water Watch's recent lobbying effort, and resulting Canadian concern over deteriorating U.S. confidence in the Canadian food safety system:

An internal Foreign Affairs memo expressed concern that U.S. "confidence in the Canadian food safety system" could be undermined in the wake of last fall's XL Foods beef recall. 

... 

Josée De Menezes, the department's acting director of the Sanitary and Phytosanitary Measures Division, expressed that concern on Sept. 27 in a widely distributed departmental briefing note obtained under the Access to Information Act by CBC News Network's Power & Politics. 

Specifically, the note refers to a U.S. campaign to halt a meat pre-clearance pilot project that is part of the Canada-U.S. Beyond the Border initiative announced last year by Prime Minister Stephen Harper and U.S. President Barack Obama. 

... 

Tony Corbo, a senior lobbyist for Food & Water Watch's food campaign, said the Sept. 18 letter to the U.S. agriculture secretary, which his group helped write, speaks for itself. 

"I'm not trying to indict Canadian meat as being less safe than U.S. meat," Corbo told CBC News. "But the fact of the matter is we have photographs indicating there was visible fecal contamination on meat products coming into the United States that were inspected at these border inspection stations. And we don't understand why there is an attempt to de-regulate a system that is actually working." 

... 

The Canadian Meat Council is one of several groups that have been pushing for the pilot project to cut delays at the border. 

"The pilot project itself only talks about getting the re-sampling, testing or inspections, getting it away from the border," said James Laws, the council's executive director. 

He said the rest of the shipments not slated for testing will be "pre-cleared" before reaching the border, allowing them get to market sooner. 

A council presentation on the project argues that "redirecting Canadian meat trucks to U.S. inspection centres also wastes time and fuel" and delays drivers from getting back on the road, at a cost of "roughly $100" per hour.

Dawson Strategic's December Briefing: A TPP Holiday Season

For readers interested in the Trans-Pacific Partnership (TPP), do check out Dawson Strategic's December briefing. Whether on the big-picture, or the leading issues within the TPP talks, the briefing's three articles are must-reads.

One particularly interesting section of Dawson Strategic's December article, The TPP: What's In It For Canada?:

Beyond its defensive interests, the TPP is a central component of Canada’s Asian and emerging markets strategy. Much of 2013 will likely be spent reconciling the trade rule-making interests and capacities of advanced industrialized economies with those of emerging economies such as Vietnam and Peru. Advanced economies like the U.S., New Zealand, Australia and Canada will bump up against each other on issues like investor-state dispute settlement and dairy market access, but there will be relatively few fireworks. In areas like intellectual property and labour mobility, the commitments that Canada is making with the EU are likely to go much deeper than anything we can expect from the TPP.

Border News Wednesday Round-Up

Some attention-grabbing Canada-U.S. border headlines.

Border Shooting.  Yesterday afternoon a Canada Border Services Agency officer was shot by an unidentified man at The Peace Arch crossing between Washington and British Columbia.  The shooter then took his own life, with the border agent reported in stable condition.  The border crossing, “the third busiest port of entry on the northern border[,]” has been closed since the shooting, but is slated for reopening at 4 p.m. today.  [Source:  WashingtonPost.com]

Cross-Border Crossings Would Be Twice as High if No 9/11, Report Finds.  A great two-day conference just wrapped up in Burlington, Ontario.  The TRANSLOG 2012 Conference explored border logistics, the cross-border talent pool, and border transportation issues.  One attention-grabbing tagline from the conference:  Meredith MacLeod at thespec.com reports “[i]f the 9/11 attacks hadn't happened, more than twice as many Canadians would be crossing the border to shop in the United States each year.”  Her source:  University of Windsor’s William Anderson, the first presenter at TRANSLOG 2012—an event hosted by the McMaster Institute for Transportation and Logistics (MITL) and Supply Chain and Logistics Association Canada (SCL). 

But Canadians Are Filling Up Border City Hotels.  HotelNewsNow.com reports that Canadians who shop in the U.S. are filling up U.S. hotels.  One interesting wrinkle to the story: Canadian shoppers who spend 24 hours or more get to bring back to Canada up to $200 in goods without a Canadian duty or taxed imposed.  If a Canadian shopper ups his or her U.S. visit to 48 hours or more, that duty/tax free credit goes up to $800.  (Note:  Both amounts are in Canadian dollars, naturally.)

The Coming North American Union? Beyond the Border Regulatory Gears Are Turning.  Lamenting America’s loss of sovereignty, Dana Gabriel—for Dissident Voice—does write on some interesting developments in the Dec. 2011 Beyond the Border Initiative:  (1) The Transportation Security Administration’s extension of TSA Pre, an expedited screening initiative at 27 U.S. airports; (2) the United States Department of Agriculture has launched a pilot program for a pre-clearance screening process for Canadian fresh meat; and (3) greater cooperation between Canada and the United States when it comes to ship inspections on the St. Lawrence River.   The impact: while some have criticized the slow-moving Beyond the Border Initiative, it’s clear that U.S. officials are beginning to streamline regulatory hurdles on the U.S.-Canada border.  I wonder how many of Gabriel’s updates came courtesy of Woodrow Wilson Canada Institute’s Beyond the Border Observer: which blogs today on the United States Coast Guard and Transport Canada launching a pilot program for the joint inspection of certain ships in the St. Lawrence Seaway.

2012 CUSLI Conference Panel 1: Managing the Perimeter -- Joint Law Enforcement & Detecting Threats Early

by Keith Edmund White

This panel discussed the joint law enfrocement efforts and other regulatory programs, and touted the growing coordination between Canada and the United States and how the Beyond the Border Imitative can build upon these accomplishments.

Chaired by David Crane, Toronto Star
Theresa Brown, Sentinel HS
Anne McLellan, PC, QC, Bennett Jones
Andrew Sugimoto, U.S. Coast Guard

David Crane Introduction: Shared Interests, But Still Important National Differences

David Crane opened the session pointing a an important theme in understanding cross-border law enforcement between Canada and the United States: the two countries both recognize the same security interests, but that the nations do have different values and institutions. This leads to an interesting outcome: shared interests between two seemingly similar countries still face challenges when dealing with one of the world's largest borders, especially in the aftermath of 9/11 that (a) showed the need of collaboration but (b) showed differences in how nations wanted to treat the border.

In closing, Crane brought up two key points. First, that this panel succeeded in bringing together three key parts of border issues: (1) policy makers, (2) bureaucratic implementers, and (3) the individuals actually engaged with law enforcement on the ground. Second, he noted that integration between Canada and the United States is being pulled not from above--on the policy-makers end--but rather from the officers on the ground who, working together, and now pushing policy-makers to push cross-border integration further.

Hon. A. Anne McLellan: BTB Initiative Is The Right Direction, But We Need to Focus on How to Build Support Among Both Countries' Citizens

While nothing that the cross-border law enforcement section of the BTB Initiative Former Parliamentarian and Deputy Prime Minster Anne McLellan touted the Beyond the Border Initiative, heralding it as "absolutely the right direction" and seeing it as a evolutionary step.

Among McLellan's many thoughtful comments, three bear particular mention.

First, McLellan made clear that the Initiative shows that the countries are moving past cooperation and collaboration, but now to integration. The poster-child of integration: the Shiprider Program that has U.S. Coast Guard personnel and RCMP working together on the same boats on the Great Lakes to enforce each nation's laws.

She also pointed out that for the operators on the ground doing cross-border law enforcement, the primary issue is not terrorism but rather the "bread and butter" issues of counterfeiting, human smuggling, contraband goods, and firearms. Stemming from this, McLellan believes that the additional work that is needed to see these regulatory reforms to stick is one of salesmanship: while in the U.S. such reforms may only be sold as anti-terrorism measures, the Canadian public is much more amendable to cross-border legal integration.

Third, one of the key breakthroughs of the BB Initiative is the clear incorporation of risk management into the document. McLellan pointed out that the 'zero risk' goal of the United States after 9/11 posed challenges to cross-border integration, but now that the joint framework has countries now engaged in managing risks and making the tough decisions, is the key to securing both countries. What has yet to be seen? That this approach will be operationalized in ways that make ways in both countries, that is essential the the BTB Initiative's success.

Question Updates:

(1) One issue that needs to be addressed, the exit-entry political debate in Canada.
(2) McLellan also shows the Canadian frustration with U.S. policymaker statements that seek to treat America's northern and southern border the same. The answer: we need to deal with these borders separately. Quick sidenote: And the U.S. Ambassador made clear that the United States don't view the two borders the same.
(3) BTB needs political support to complete, and must be seen in view of the Canadian public that doesn't see in pursuing these changes--especially with 9/11 now occurring over a decade ago.

Theresa C. Brown: The BTB Initiative Represents a Big Step Forward

Former DHS Attache of the United Stats in Ottawa (2008-11) and now Director of The Sentinel HS Group, LLC, Theresa C. Brown brought the viewpoint of the bureaucrat who has to implement cross border regulations. She gave six lessons from her work implementing cross-border regulations. Central to her insights was her work in ensuring that law enforcement officers can do there jobs; but to do so, we must make sure they are operating under proper legal authority and know the scope of their duties. If joint border efforts don't put emphasis on the middle-level bureaucrats who must interpret policy-shifts into clear law and regulations so that (1) law enforcement officers can do there work with (2) going beyond their legal mandate which can cause headaches in both countries, and cause integration to backslide.

First, both countries--after 9/11--needed to work together in identifying how they judged risk. And what the BTB Initiative now brings both countries together in how they formulate risk.

Second, BTB Initiative has taken both nations' cooperation agreements beyond 'vague statements of intent.' While such language might be a political necessity, it simply pushes tough decision to the bureaucratic who have to make figure out how to interpret broad language. This then pushes disputes downward, away from policy makers who have the authority to bridge these differences. The great breakthrough of the BTB Initiative is to put down in clear language the steps these countries plan to make.

Third, the BTB Initiative puts responsibility for making crossborder law enforcement decisions in the hands of those political officers who have authority over the multiple departments who play a law in U.S.- Canada border issues.

Fourth, Theresa pointed out the need for the countries to address the differences between them openly and honestly. And she revealed a straight-forward but significant insight: that when it comes to large projects, the middle-level operators on both countries don't want to bring up 'bad news' to policymakers. Hence, for BTB Initiative to succeed we must keep pressing on the remaining challenges.

Some examples: (1) While the Shipriders Program, we're still waiting for the Canadian Parliament to pass legislation, also we haven't address this if this program goes off the water ot the land, how far should it extend--10, 20 miles? (And McLellan pointed out difficult with getting Cross-Border PILOTS program through.)

Fifth, we still have to deal with technical matters of customs law. For example, arms can't pass over the border, even if these are law enforcement officers doing their jobs. And there are other issues; therefore, we must put energy on this technical work which while not the most attention-grabbing often is the key to make joint border plans work.

Finally, Brown pointed out that all this work requires both nations to ensure they have the middle level bureaucrats to work through these issues. These are the actors that connect policy to the people on the ground that enforce the laws on the book. Unfortunately, in an era of budget cuts, will nations put the money in the behind-the-scenes actors that will be critical to ensuring that the BTB Initiative succeeds.

Cpt. Andrew Sugimoto, U.S. Coast Guard, Ninth District: Great Strides in U.S.-Canadian Security Cooperation Have Taken Place, But More Issues Remain

Sugimoto pointed out that the Coast Guard is a critical player in border enforcement, with $1.5 billion of goods crossing the Great Lakes every day and ships crossing back and forth seven times in a day. And that the two countries have cooperated with the Coast on a number of issues. But he noted that there are remaining areas where more work is needed to (1) ensure smooth trade between the nations and (2) protect both nations' security and sovereignty.

The successes: (1) 96-hour notice for Canadian cargo ships coming in each nation's waters, (2) bi-national ballast water inspections that have now stopped the introduction of new species into the Great Lakes, (3) the shiprider program, and (4) reducing regulatory overlap in how we manage the Canadian-U.S. waterways.


But there are remaining challenges: (1) both nations still have different ID cards for their shippers. Why not have pre-clearance, multi-modal ID cards, which would allow U.S. and Canadian shippers (whether by truck or ship) to clearly get over the border. And (2) both countries have to still work on intelligence sharing, which does face difficulties with each nation's different legal and political realities.