Law Enforcement Problems at the U.S.-Canada Border

Source: Carnegie

Testimony before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, United States House of Representatives, April 14, 1999. Revised slightly, April 19, 1999.

I. INTRODUCTION

Mr. Chairman, Ms. Jackson Lee, Members of the Subcommittee. My name is Demetrios Papademetriou, and I am the Co-Director of the International Migration Policy Program at the Carnegie Endowment for International Peace. Thank you for asking me to testify today regarding the U.S.-Canada border.

I am submitting this testimony on behalf of myself and my colleagues at the Carnegie Endowment, Deborah Meyers and Nicole Green. It reports on the preliminary impressions from extensive fieldwork along the U.S.-Canada border. That fieldwork is part of an ambitious comparative international project that seeks to advance understanding of how communities that straddle an international border, and at times form a single economic and cultural entity, manage common challenges, and particularly the migration relationship. The project looks at five different international border regions—U.S.-Canada, U.S.-Mexico, Germany-Poland, Russia-China, Russia-Kazakh. It aims to catalogue existing local initiatives, understand and explain similarities and differences, pull out and contextualize "best practices" in local self-management, and share these with a variety of stakeholders, including central governments.

The project’s point of departure is a widely-shared concern that policy-making and discussion about borders and their management occurs primarily in national capitals. We started from a working hypothesis that at the local level, communities on both sides of a common border are thinking creatively and often collaboratively about common problems and interests and, to the degree they are allowed to do so, develop processes and institutions that give substance to the concept of devolution. After extensive fieldwork along the U.S.-Canada border, we have become convinced that local officials, in partnership with business interests, worker organizations, and community-based and other relevant groups, should play a much more significant role in the ongoing discussions about and the implementation of policies that affect their lives.

Although our project is looking at several borders, my remarks today are based upon our own work in three different regions along the U.S.-Canadian border, as well as on our understanding of circumstances along the U.S.-Mexican border. We have made five extensive visits to three areas along our Northern border (Detroit/Windsor/Pt.Huron, Buffalo/Ft. Erie/ Niagara, Seattle/Bellingham/Surrey/Vancouver) over the last five months. During these Northern border trips, we have visited nine different ports-of-entry. We have conducted well over 70 interviews in both countries with local government officials, business leaders, federal immigration and customs officials, bridge operators, community-based non-governmental organizations, researchers, and local residents. We will be happy to share additional information from this project with you in the fall, once we have received initial reports from the teams that are doing similar work along the other four international borders.

II. GENERAL OBSERVATIONS

Our overall impression from our own work is that a single policy and set of rules does not, and will not, work for managing both of our land-borders. The principle of treating our two NAFTA partners equally is crucial; our policies, however, must be sensitive to three factors that distinguish our relationship with Canada from that with Mexico: 1) The history of special bonds between the U.S. and Canada; 2) The reality that access to each other’s countries has been a long established and accepted practice; and 3) The geography (and topography) of the Northern border.

Let me give you some examples of what I mean by these. Regarding the special, historical links between the United States and Canada, these include a shared language (mostly) and historical tradition; similar emphases on the rule of law and democratic principles; a tradition of cooperation in matters large and small; and long-term alliances and partnerships in regional and global matters. It also includes virtually identical immigration traditions and similar levels of social and economic development, particularly in the border regions. Well before NAFTA, many industries along the Canadian border already related to both countries in a seamless manner (the auto industry became fundamentally a single industry with the Auto Pact of 1965) and viewed their proximity to the border as an advantage. The NAFTA simply accelerated the pace and added depth to the level of such seamlessness. Finally, the two countries have a number of unique agreements in place, such as the Open Skies Agreement regarding air travel between the two countries and the International Joint Commission, which acts as an independent advisor to both governments, resolves disputes under the 1909 Boundary Waters Treaty, and helps protect the transboundary environment.

On the issue of access between the two countries, the communities themselves frequently view themselves as one, with Windsor residents working in Detroit and fervently cheering for the Detroit Red Wings (rather than the Toronto Maple Leafs) and Detroit residents viewing Windsor as just another suburb and taking routine weekend trips to Windsor restaurants or Toronto theaters. Similarly, Buffalo residents frequent their summer cottages in Ft. Erie, Ontario, and Canadians fill up the parking lot at the Elliocottville, NY ski resort.

Finally, regarding geography, the length of the Canadian border is at least double that of the Mexican border and approximately 90% of the Canadian population lives within 60 miles of the American border. This makes the border an extremely relevant issue for Canadians. (Only a small proportion of the U.S population lives close to a border.) In many of these areas, such as Detroit and Windsor, the crossing infrastructure (e.g. the Detroit-Windsor tunnel that runs underneath the Detroit River) cannot be enhanced without enormous investments of additional funds.

B. A "One Size Fits All" Strategy Doesn’t Fit Even One Border

Differences among ports-of-entry in terms of needs, challenges, priorities, etc., make it difficult to generalize even about the entire length of a single border, much less about both borders. Border policy must thus be sensitive to the "facts-on-the-ground" in each border area. Below are examples of how border traffic varies along the Northern border.

Regarding differences in local challenges, in some ports-of-entry in the Eastern half of the U.S., the primary problems (e.g. long lines and long waits because only two out of ten booths may be staffed) can be alleviated with additional staffing. More inspectors can translate into greater facilitation and better enforcement while also addressing such collateral issues as the additional environmental pollution resulting from trucks awaiting inspection. In ports-of-entry in the Pacific Northwest, there is a sense that U.S. border inspectors must try to prevent the entry of high quality marijuana produced in British Columbia (and apparently valued highly among U.S. users), that Canadian inspectors must redouble their efforts to deter weapons and cocaine smuggling, and that both countries must work harder to prevent the entry of goods that are fraudulently labeled so as to make them tariff free under NAFTA.

How, then, should we treat our borders? In our view, the idea would be to have a single national border policy that treats both borders and neighboring countries equally, but allows different regions and ports-of-entry along both borders to set their own priorities and to develop and apply tools that respond to the challenges and opportunities that the region presents (by "region" we mean a space that may include both sides of a border). Of course, while local flexibility and innovation should be encouraged and rewarded, it must be accomplished in a manner that makes arbitrary actions or the arbitrary interpretation of fundamental rules unacceptable. We have spoken with many people in our fieldwork who were extremely frustrated with inconsistent (and often seemingly improper) behavior by staff of the inspection agencies. Most people told us they would be happy to comply if they knew what the rules were and if the rules didn’t seem to change all the time.

Another way of looking at the issue of how much uniformity we should insist upon—particularly when it comes to managing both of our borders—might be to think of Mexico and Canada as situated on a continuum whose two end points are sealed borders and no borders. Canada and Mexico, for the reasons we discussed in our listing of the similarities between Canada and ourselves, are situated at different points along that continuum—although we envision that eventually, both will be moving toward the direction of fewer, rather than more border formalities. Clearly, such progress is likely to occur at different speeds. By acknowledging that the ultimate aim of our policy is the equal treatment of both countries, we give ourselves the flexibility to treat both of our NAFTA partners within a single framework while dealing in practical ways with the fact that they are located at different points on that continuum and thus are able to meet vastly different performance benchmarks.

With Canada, we can experiment with policies and test ideas that are specific to a locality and, if they prove successful, can then be "exported" to other localities along that border. And with regard to the Southern border, we can offer Mexico the prospect of importing those innovations that prove useful, and even testing its own innovations, as soon as it can replicate the conditions that made them succeed in the Northern border. Such an open-ended, "learning by doing" approach, is likely to serve broad U.S. interests best while acknowledging both the different realities of each border (and each port-of-entry) and the need to be sensitive to the optics of treating Canada and Mexico too differently.

Our research also has identified several good ideas and initiatives that already are taking place at the local level. (Of course, there are positive steps being taken at the federal level, most significantly the Accord on Our Shared Border signed by Prime Minister Chretien and President Clinton in 1995.) We outline a few of them here without much discussion because we believe that they should be widely publicized across the entire border and that the two federal governments should start taking them into account as their thinking evolves in these matters.

Private sector initiatives

Academic initiatives

Tourism-related initiatives

Government initiatives

These are only some of the many ideas we heard on our visits.

 

III. CHALLENGES

U.S. Customs and the INS do the work of over 20 federal and state government agencies as they inspect goods and people at land borders, seaports, and airports. The challenge clearly is to balance effectively all the major interests and actors—facilitating access by the legal traffic, preventing entry of illegal goods and turning back all unauthorized traffic, appropriately responding to asylum claims, etc.

I would like to make three general points regarding the challenges that are intrinsic to performing this critical inspection function.

First, the growing trade and commercial relationship between the United States and Canada is so important that interfering with it is simply foolish. Canada is our number one trading partner with $370 billion in two-way trade in goods and services in 1997, which means that over $1 billion in goods and services crosses the border daily. Estimates are that 45 percent of U.S.-Canada trade goes through a Michigan/Ontario Port-of-Entry and that 30 percent goes through the Buffalo/Ft. Erie/Niagara region. The Ambassador Bridge in Detroit, in fact, accommodates the largest commercial exchange in the entire United States (almost 11 million vehicles in 1997, including over 2.5 million trucks).

On the passenger side, traffic also has increased significantly, and all indications are that it will continue to do so. In recent years, over 30 million people went through the Detroit ports-of-entry each year, followed by almost 30 million crossings in the Buffalo district, and over 20 million in the Seattle district. Considering the sheer size of these numbers, the U.S. Congress should be thinking of ways to encourage federal agencies and assist local agencies and private sector organizations to further enhance facilitation, rather than creating obstacles.

Second, the threats of illegal immigration, drugs, and terrorism are indeed real in the following sense: every port-of-entry is vulnerable to penetration by undesirable elements. And, as experience has taught us, this vulnerability extends to the issuance of visas—making entry through the front gate perhaps the easiest route of entry by most intending criminals. The rest of them, and especially the more "serious" criminals, have ample space—and the resources—to bypass port-of-entry controls without much effort. Indeed, the evidence from a variety of ports-of-entry seems to indicate that entry attempts by criminals who are potential threats to our society are rather rare and isolated, particularly relative to the huge number of crossings. In fact, in town-hall and focus-group meetings in Detroit, Michigan and Point Roberts, Washington, both of which included American and Canadian citizens and residents, not a single person put forward serious security concerns about the entry of Canadians or Americans into their respective countries or argued that a more open or differently managed border would lead to less security.

The lesson, we think, is obvious: we should not abandon common sense and overreact to occasional violations of our laws by inconveniencing the 98 or 99 percent of compliant traffic while trying to pursue the remaining one or two percent who are non-compliant. On the immigration side, many of those who are non-compliant seem to be neither deliberately nor meaningfully non-compliant. (Primarily, they are Canadians who are only in technical violation of the rules). On the drug side, some port-of-entry Customs officials acknowledge that most of those who are not compliant seemed to be "mom-and-pop" types carrying small amounts of marijuana—rather than serious drug smugglers.

We do not mean to belittle the importance of the drug and people smuggling interdiction efforts. But, outside of the Washington State/British Columbia crossings, nobody even suggested to us that such smuggling was a serious problem. Furthermore, we have seen no evidence and have heard of no claim that, even in places where the anti-smuggling/drug effort is most dedicated, the inspection system currently in place at either border intercepts most would-be violators. A number of people even suggested to us that a random inspection method would probably be as effective as the current inspection methodologies. And under questioning, even those most committed to the anti-alien smuggling/ anti-drug effort acknowledged that most of their good "busts" occur as a result of tips, good old-fashioned human intelligence work, and seamless on-the-ground cooperation with the Royal Canadian Mounted Police.

The recommendation that flows from this analysis is obvious: more attention and resources should be devoted to intelligence gathering and information sharing regarding third country nationals and drug, alien, or weapons smugglers (the serious threats), rather than on "thickening" the current system of inspections. (The inspector corps of both main inspection agencies should increase, however, if we hope to keep up even minimally with increased traffic.)

Controlling illegal immigration, drugs, and terrorism are of concern to all of us and a proper priority for the government. The method being proposed in IIRAIRA Section 110, however, seems unwarranted and unlikely to achieve additional results absent extraordinary new investments in human and physical infrastructure. Failing that—and many people in fact argue that even with that—we will find ourselves in the unenviable positions of shooting ourselves in the foot both economically and in terms of our relations with one of our closest partners; and all that while looking for the perfect solution to a near non-problem (or, more accurately, to a problem that can be handled more effectively and efficiently through other initiatives).

We want to emphasize again that this does not mean that we propose that we should be doing nothing more. In fact, we should be focusing our resources on high-risk traffic of all types. Violators and potential violators need to be targeted through means such as intelligence and cooperation with the Canadians, who are not likely to be any less interested in keeping out of Canada the same types of terrorists and organized drug and alien smugglers who are of concern to us. In fact, one idea whose time seems to us to have arrived, is engaging in open-ended negotiations with Canada about increasing the level of harmonization between U.S. and Canadian policies on such matters as cargo and passenger pre-clearance programs, law enforcement programs of all types, and, in due course, even the issuance of visas.

Pre-clearance for regular commuters, for instance, could be harmonized so that Canadians and Americans who register with the program and who qualify for it could enter both countries from any port-of-entry in an expedited manner. Similarly, on cargo inspections and anti-alien and anti-drug smuggling efforts, why not start from the premise that both we and the Canadians want to keep out the same persons and goods? (We found little argument anywhere with that premise.) Then, why not work together more closely to agree on who can enter (and facilitate those entries), to share as much information as possible about matters of common interest, and to keep out those who should not be admissible to or welcome in either country? And although we cannot expect identity of views with Canada on all matters up front, enough agreement exists to make negotiations on the issues on which we disagree worth the effort.

Finally, we need to start thinking about the border as a system. With NAFTA pushing all three partners inexorably toward a fully integrated region, such practices as just-in-time production and the ability to move goods and people across all three countries (in an efficient if still regulated way) become critical elements of regional competitiveness. The prosperity of all of us relies on such competitiveness. Intelligent inspection strategies that are realistic and can inspect without unnecessary hassles or delays throughout the NAFTA space must thus be given priority.

At present, our Southern border seems to be reeling under the weight of efforts that try to bring it under control while the U.S.-Canadian border may be suffering partly from the malady of inattention (reflected in large part in understaffing). The results, however, are in many ways similar. In neither border are the goals of facilitating all the commercial, commuter, and visitor traffic (while doing an effective enforcement job) being met satisfactorily.

Good enforcement and good facilitation go hand-in-hand; you can’t do one well without paying careful attention to the other. Absent concurrent and roughly equivalent efforts to do better along all borders, undesirable border crossers will indeed look for and exploit the weak links. Since we don’t believe that any of us is thinking seriously about "leak-proof" borders, the changes in effectiveness and efficiency must come from thinking differently about the inspection function.

Thinking about the border as a system allows us to think prospectively about the greatest challenges an inspections-based border effort faces while addressing issues of smuggling before smugglers and their cargo reach the border—where they might or might not be intercepted. It also compels us to think differently about the infrastructure necessary to execute whatever inspection methodology is relied upon. Infrastructure—which includes not only the crossings themselves (be they land crossings, bridges, or tunnels), but also the inspection space for both countries, the immediately surrounding roads, and the highways leading into and away from them—is already bursting at the seams along the Northern border. Before we make massive new investments in building more of the same, why not think first about how we want to see borders operate in the future and then build the infrastructure that can take us there?

IV. CONCLUDING PRINCIPLES

We leave you, then, with the following six general principles about how to handle the U.S.-Canadian border which summarize many of the items we have discussed above.

1. We should not inconvenience everyone and interfere with economic interests and local community dynamics in the hopes of catching a few additional violators. There are more effective and efficient ways to deal with the bad guys.

2. We should be working with our Canadian counterparts at every level, institutionalizing contacts, enhancing cooperation, and sharing information on matters small and large. Our respondents made clear to us time and again that inter-agency cooperation across the border is extremely effective and that it in fact is taking place quite routinely among officials in both countries—if only informally and intermittently because it is not yet formally sanctioned by the two central governments. Cooperation of this nature should be actively encouraged by the governments of both countries. In doing so, neither country should shy away from unconventional ways of solving problems. Among these might be the physical sharing of buildings and facilities, cross-training, and joint operations. In all U.S. sites that we visited along the border, we heard nothing but positive comments about the Canadian consulates and their effectiveness in pulling together a variety of interested parties on border issues and in being catalysts for change and forward thinking. Interestingly enough, the Mexican consulates play a similar role along our Southern border quite effectively, especially given the nature of the challenges they face. If indeed these are shared concerns, as we believe they are, our Consulates in Canada (and Mexico), where appropriate, should do no less.

3. We should be making much greater investments in intelligence gathering and gradually focus ever larger parts of that effort at initial entries into the North American continent. For those who are so inclined, a Fortress North America may be easier to create than a Fortress U.S.A.

4. We should be making far greater investments in infrastructure and in technology (both at ports-of-entry and the corridors leading to such ports). Both types of investments are critical components of any comprehensive effort at improving the management of the border. Such investments must proceed, we believe, from a reconceptualization of the current inspection methodology to rely much more on risk assessments and random inspections and less on inspecting every person. (Under the current methodology, an inspector must speak with every crosser). They also must focus more directly on targeting resources toward pre-clearance programs for both people and cargo.

5. We should work more closely with private sector interests whose thinking often is ahead of the curve. Whether these interests have a financial stake in making the border work more smoothly and predictably or simply are community-based organizations committed to better border management, better treatment by border officials, and more efficient travel, their ideas should be solicited and listened to systemically.

6. Most importantly, perhaps, the federal government should make a habit of working more closely with the communities that are affected by these issues on a daily basis. Their input (including soliciting ideas and providing feedback on others’ ideas) should be incorporated at an early stage of the policy process.

Thank you again, Mr. Chairman and Ms. Jackson Lee for inviting me here today.