Homeland Security Watch

News and analysis of critical issues in homeland security

June 27, 2009

“…that kind of debate among two Cabinet officers … will inevitably lead to better policy.”

Filed under: Border Security,General Homeland Security,Homeland Defense,State and Local HLS — by Christopher Bellavita on June 27, 2009

When is a “food fight” better described as using the dialect to develop policy?

Spencer Hsu’s “Pentagon, DHS Divided On Military’s Role at Border” outlines some legitimate policy differences between the Department of Defense and the Department of Homeland Security over the military’s role in domestic security.

The debate goes to the heart of the military’s role, which has expanded since the 2001 terrorist attacks, with an increasing commitment of troops and resources to homeland defense, particularly to help state and local officials respond to a nuclear attack or other domestic catastrophe. The deployment of new troops to the [US - Mexican] border [to help counter narcotics efforts] would represent a mission the military has not traditionally embraced.

Bert B. Tussing, director of homeland defense and security issues at the U.S. Army War College’s Center for Strategic Leadership is quoted briefly in the article:

“What we’re seeing … here is a move toward reframing where defense begins and ends…. Traditionally the military looks outward, but looking outward has begun a lot closer to home, and it may involve looking just across the border.”

Last October, Bert wrote a substantive strategic analysis of this topic: “New Requirements for a New Challenge: The Military’s Role in Border Security.”  The article is available here, and is worth reading if this is a homeland security-related issue you follow.

From a process perspective, Hsu’s article provides an example of the role metaleadership plays (at least implicitly) in the way the Obama administration treats wicked problems:

A senior White House national security official said the president is comfortable with the disagreement and “wants to see the kind of creative tension and full-out debate that major policy decisions engender.”  The official added, “It’s the president’s view that . . . frankly, that kind of debate among two Cabinet officers like Secretary Gates and Secretary Napolitano, both of whom he holds in high regard, will inevitably lead to a better policy.”

Tossed the right way, food fights can nourish.

June 9, 2009

Homeland security: House Appropriations sub-committee mark-up

Filed under: Border Security,Budgets and Spending,Congress and HLS,State and Local HLS — by Philip J. Palin on June 9, 2009

Last evening the Homeland Security subcommittee of the House Appropriations Committee completed its mark-up of the FY2010 DHS budget.

In his statement, Chairman Price explains, “Overall, the discretionary total in the bill for the Department of Homeland Security is $42.625 billion. This is $2.6 billion, or 6.5 percent, above the comparable fiscal year 2009 amount and about 1 percent below the Administration’s request when you exclude the cost of the Coast Guard overseas operations. This funding level reflects the hard decision Congress made in adopting this year’s budget resolution, which reduced overall funding levels by $10 billion. This Subcommittee had to take its share of that cut.”

In what may be the most significant difference from the administration’s budget request the sub-committee substantially increased funding for Immigration and Customs Enforcement operations on the Southern Border. “The mark provides $97.8 million, or $27.8 million more than requested, for ICE programs that support the Southwest Border Initiative including: a $10 million expansion of ICE investigations of transnational gangs; an additional $10 million for ICE to improve investigations of cross-border weapons smuggling; $5 million more for ICE drug smuggling investigations; and an additional $2.8 million to expand human smuggling and trafficking investigations.”

In its latter years the Bush administration had, winking and nodding, discontinued many first responder grants. OMB knew that these would be restored by the Congress. This year the White House budget included these grants. “DHS requested $3.867 billion for grants to assist them with everything from planning to equipment. The Subcommittee strengthens that commitment to our State and local partners by providing $3.96 billion for comparable grant programs, including: $330 million for Emergency Management Performance Grants, our one true all-hazards grant program; $800 million for Firefighter Assistance Grants to equip our Fire Service and help stem the tide of layoffs that diminish public safety; $950 million for the State Homeland Security Grant Program; and $887 million for the Urban Area Security Initiative, which is security money targeted to the highest risks of terrorism.”

I always associate June mark-ups with my flower garden. The blossoms are beautiful. But the real story is deep in the soil. It is worth digging deeper into the details of both the mark-up and the eventual conference report.

A bit more — including the ever-popular summary table and earmark list – is available from the subcommittee’s website.

March 26, 2009

Meanwhile… on the Northern Border

Filed under: Border Security,General Homeland Security — by Philip J. Palin on March 26, 2009

“It’s a real border, and we need to address it as a real border,”  Secretary Napolitano told a Brookings Institution audience yesterday.  The Toronto Globe and Mail reports, “Her goal seemed to be to throw a bucket of reality on anyone who hoped that the arrival of Barack Obama’s new administration would herald a loosening of new restrictions on cross-border traffic.”

The Republic of Texas v. United States

Filed under: Border Security,Budgets and Spending,Homeland Defense — by Philip J. Palin on March 26, 2009

Secretary Napolitano has canceled today’s scheduled trip to Texas.  She was to have joined Governor Rick Perry in Port Arthur.  A bit before 10:00 pm (eastern) last evening the DHS press office announced the decision, “due to bad weather predictions for tomorrow. The inclement weather would prohibit Secretary Napolitano from being able to take her trip as planned to fully assess recovery and rebuilding efforts from hurricanes Ike and Gustav.”

Today’s weather forecast for Port Arthur reads, “Variable clouds with scattered showers and thunderstorms, mainly during the afternoon hours.  A few storms may be severe. High 78F, Winds SSE at 10 to 20 mph.  Chance of rain 40%.”

The storm warning of most concern may be more political than meterological.  While the trip was scheduled to examine hurricane recovery, whaddaya want to bet the border might  be brought up?

One month ago Governor Perry asked the Secretary for, “… an additional 1000 Title 32 National Guard positions… along with six OH-58 helicopters equipped with Forward Looking Infrared Radar for night operations.  These resources will be utilized only in Defense Support of Civilian Authorities (law enforcement).”  Perry’s letter and some contextual comments can be accessed on the Office of the Governor website. 

The request for sending 1,000 troops to the border, “is under active consideration in the Defense Department and will depend on several factors,”  Napolitano is quoted as saying in the Latin American Herald Tribune.   In a Wednesday interview the Secretary explained, “It’s a decision that must be made with much caution because, as President (Barack) Obama has already said, we don’t want to militarize the border. We want to lead (the anti-drug fight) with the civil authorities and that’s what we’re doing.”

In Texas and other border states, this issue is being played as an example of  federal restraint limiting local authority.  In yesterday’s  Dallas Morning News blogsite  there was a spirited discussion (or at least an exchange of views).  One of the blog contributors, signing in as True Texan, wrote, “I’ll side with a Texan versus a Washington insider EVERY TIME when it comes to the safety and protection of Texas. Obama doesn’t live here and doesn’t know what’s going on. He, like the other Ivory Tower dwellers, are insulated from reality, especially the reality of the Texas border.” 

I expect the Governor’s political operatives are not unhappy with True Texan’s characterization.

As is so often the case, reality can be complicated.  Notice that in his letter the Governor is requesting 1000 Title 32 National Guard positions.  This is a reference to the ever popular Title 32 of the United States Code.  The Governor already has authority to deploy any Texas Title 32 forces.  This is explicit in several sections of the Code (and the US Constitution), including Chapter 9, Section 907, “Nothing in this chapter shall be construed as a limitation on the authority of any unit of the National Guard of a State, when such unit is not in Federal service, to perform functions authorized to be performed by the National Guard by the laws of the State concerned.”

But if the Governor deploys on his own authority, he will need to pay for the deployment with state dollars.  What he is really requesting is not federal permission to use Texas troops, rather he is requesting federal funding for those troops.  To Governor Perry’s credit he has pressed the Texas state legislature to continue funding extraordinary costs associated with the State’s role in border security.  But 1000 troops and six helicopters can eat up millions more very quickly.

Related news coverage KFOX El Paso, Dallas Morning News (editorial),  the Daily Telegraph, and the American Forces Press Service.

(Last evening Mr. William R. Cumming, a regular contributor to HLSwatch, was kind enough to respond to my request for his read on the situation.  From 1979 to 1999 Mr. Cumming was on the staff of the FEMA General Counsel.  As Mr. Cumming wrote me, “… looks like (it’s) really all about money.”)

UPDATE: In her Wednesday meeting with the Senate Homeland Security and Government Affairs Committee, Secretary Napolitano demurred regarding additional funding focused on the Southern Border.

March 25, 2009

Napolitano Testimony

Filed under: Border Security,International HLS — by Philip J. Palin on March 25, 2009

In formal testimony filed this morning with the Senate Committee on Homeland Security and Government Affairs, Secretary Napolitano highlighted the following:

The US should recognize that the border violence is the outcome of necessary actions being taken by the Mexican government against the drug cartels.

DHS and the federal government as a whole is being proactive in supporting the Mexican government and minimizing threats to the United States from an overflow of violence.

State and local law enforcement in the border states are essential to the effort and a focus of DHS support.

Supporting Mexican law enforcement is another crucial feature of DHS support.

Stopping arms smuggling across the border from the US to Mexico is a priority.

DHS is working with DOD and other federal agencies to be prepared for unlikely but worst case scenarios.

The complete prepared testimony is available from the DHS website.  I could not attend the hearing.  A friend had agreed to monitor the webcast, but this hearing evidently was not webcast.  Anyone who was there, please add your report using the comment function.

Looks like Eileen Sullivan may have filed her AP story from the hearing room.  In any case, it is the first coverage I can find.  Shortly before 3:00 pm CNN posted its coverage of the hearing.

Mexico moves to the front-burner

Filed under: Border Security,International HLS — by Philip J. Palin on March 25, 2009

Since at least December 2006 the Mexican government has been engaged in an intense struggle with criminal cartels that control shipping and distribution of drugs to US customers.  It is a furious and deadly fight.  This week Washington D.C. took serious notice.

This is not the first notice.  In September 2007 Colleen Cook at the Congressional Research Service prepared a very helpful primer on the, then, five major cartels.  A few years ago the New York Times started an online archive dedicated to Mexican drug trafficking.  The stories go back to 1990.  There are plenty of other examples of sober testimony, earnest effort, and even strategic engagement.

But this week Mexican border violence became a “numero uno” issue in a city accustomed to spinning many plates on long poles. 

Yesterday DHS and Justice announced a  range of new border security initiatives.   Punctuating the priority, senior officials from State, Justice, and DHS appeared together in the White House briefing room to meet with reporters. At 9:30 this morning the same trio will testify on the topic.  Today Secretary of State Clinton begins a two-day visit to Mexico.  Both Napolitano and Attorney-General Holder will be making trips to Mexico in the next two weeks.  The President will be in the Mexican capital on April 16-17.

Confirming the issue’s new front-burner status, yesterday morning the White House made explicit how it is going to be very much involved, “Because this effort has so many facets, the U.S.-Mexico relationship and our efforts to help address the increase in violence in Mexico are being coordinated at the White House through the NSC and HSC.” (See the complete White House statement.)

UPDATE: In its afternoon lead story the New York Times is reporting on Secretary Clinton’s remarks on arriving in Mexico City: Clinton Admits US Demand Feeds Mexico’s Drug Trade

March 24, 2009

Border Security: Setting the Stage

Filed under: Border Security — by Philip J. Palin on March 24, 2009

Late this morning (Tuesday) the Department of Homeland Security announced several actions focused on improving security along the Mexican border.  According to the DHS news release, these include:

  • Increasing ICE’s Border Enforcement Security Task Forces (BEST), from 95 to 190, at a cost of $5.7 million; triple the number of intelligence analysts working at the border, at a cost of $3.3 million; and increase ICE Attaché personnel, agents working in troubled areas in Mexico such as Ciudad Juarez and Hermosillo, by 50 percent, from 24 to 36 agents, at a cost of $650,000. 
  • ICE will add 50 agents and officers assigned to Criminal Alien Program Violent Criminal Alien Sections, located in the five Southwest border field offices, adding 50 agents and officers, at a cost of $2.3 million; as well as increase the number of agents designated as Border Liaison Officers, who work to create cooperative relationships between U.S. and Mexican law enforcement authorities, from 10 to 40.
  • DHS will also send new technology to the border, bolstering Secure Communities biometric identification deployment at locations at the highest risk for violence committed by criminal aliens, at a cost of $95 million, and implementing 100 percent southbound rail screening using non-intrusive inspection equipment to detect anomalies in rail cars.
  • CBP will enhance resources at ports of entry, moving more Z-Backscatter mobile X-ray units, used to help identify anomalies in passenger vehicles, to the Southwest border. CBP is deploying 100 Border Patrol agents to augment outbound inspections at ports of entry, where they will implement more high-tech screening devices, 12 new deployments of teams of “cross-trained” canines that can detect both weapons and currency, and eight additional Law Enforcement Tactical Centers—hubs of information sharing between CBP and local enforcers.
  • Upgraded License Plate Readers, which help identify suspected smugglers’ vehicles, will be installed on 52 out of 110 outbound lanes, at a cost of $13 million total. In addition, three Mobile Response Teams of 25 CBP Officers each will be deployed to the Southwest border. And up to $59 million in remaining fiscal years 2006-08 Operation Stonegarden funding will be made available to enhance state, local and tribal law enforcement operations and assets along the border. 

Secretary Napolitano is scheduled to testify tomorrow on Mexican border security before the Senate Homeland Security and Government Affairs Committee.  Excellent related story available from Matthew Johnson at Congressional Quarterly.

The complete DHS news release is available from the Department’s website.

March 22, 2009

Mexico City Blues

Filed under: Border Security — by Philip J. Palin on March 22, 2009

I know how and when to pull the trigger, Janet tells us.

Tom tells us there are entirely too many triggers.

But together we can triumph, Chad tells Texans.

Great God Almighty
   What’s to be done?
   O what’s to be done?
Sings the majestical keener
   and moaner
At the Mexican Funeral home -
And from a clap in the upclouds
Comes a clap of clouts,
All has been done.
As Theravada say “Nothing”

224th Chorus of Mexico City Blues by Jack Kerouac (1959)

More from the Houston Chronicle, El Paso Times, and the Washington Post.

March 11, 2009

Mexican Violence

Filed under: Border Security,Budgets and Spending — by Philip J. Palin on March 11, 2009

Yesterday’s House Appropriations Homeland Security subcommittee pushed hard on border security issues connected with Mexico’s drug violence. “This is a war with potentially devastating consequences for the United States,” said Hal Rogers, the ranking Republican. “We have our heads in the sand, I don’t see us taking it seriously.” (See the Reuters report)

Responding to especially intense subcommittee questions, Jayson Ahern, Acting Commissioner for Customs and Border Protection insisted the Secure Border Initiative is on track.  (More from Nextgov and Ahern’s prepared remarks)

“The reason you see the escalation in violence is because U.S. and Mexican law enforcement are winning,” Garrison Courtney, spokesman for the Drug Enforcement Administration, said Tuesday in a Mexico City interview with the Associated Press. “You are going to see the drug traffickers push back because we are breaking their back. It’s reasonable to assume they are going to try to fight to stay relevant.”

In a detailed Tuesday editorial, the Houston Chronicle seemed to agree with the DEA, “Mexico’s turmoil… is the effect of a government trying to face down the forces of anarchy — not the aftermath of succumbing to it. This is very different from what happens in a ‘failed state,’ where the government loses its legitimacy and power.”

The Chronicle editorial concludes with advice for President Obama, “He needs… to be fearless in articulating two unpopular truths about Mexico’s violence. Narco-crime is a complex, deeply rooted cancer that Mexicans allowed to grow — and that they themselves need to carve back, bloody as that process may be. But this narco-crime feeds on Americans’ drug demand and American gun sales to traffickers.  As the world’s most powerful nation, we need to confront these realities and find the will to change them for our own stability.”

The House Homeland Security Committee, Subcommittee on Border, Maritime, and Global Counterterrorism, will hold a related hearing on Thursday beginning at 10.  It will be webcast.

UPDATE: During the noon hour, eastern time, DHS announced weapons seizures as part of their effort to support Mexican authorities.  Reuters also has a story.

February 25, 2009

Napolitano Testifies

Filed under: Border Security,Congress and HLS,Immigration,Intelligence and Info-Sharing,State and Local HLS — by Philip J. Palin on February 25, 2009

If you missed the webcast, Secretary Napolitano testified this morning and into the early afternoon before the House Homeland Security Committee.

In a brief summation of her prepared remarks the Secretary highlighted three priorities for, as she said, “kicking the tires” at the Department of Homeland Security:
1. Immigration enforcement,
2. FEMA working with others, and
3. Sharing intelligence and analysis.

The committee’s follow-on questions did not give much attention to immigration policy, probably because this is mostly in the Judiciary Committee’s jurisdiction. But border security – and especially escalating violence in Mexico – was the focus of many members comments and questions. In response the Secretary noted the Mexican government is undertaking serious and much needed action against narco-terrorists. DHS is attempting to assist by reducing the southward flow of weapons and money. But the Secretary cautioned against militarizing the border, while promising a vigorous response if local authorities perceive the need for help with troubles boiling over the border.

(Shortly after the House hearing concluded Attorney-General Holder announced the arrest of over 750 individuals associated with Mexican drug cartels.  For more see an AP report and The Washington Times. )

When Congressman Mike Rogers (R-AL) asked whither-goest-FEMA, the Secretary noted,  “I have not yet had a conversation with the President,” and was clearly keeping all options on the table. Still neither the Secretary nor the Committee seemed enthusiastic about FEMA being decoupled from DHS. Several members of both parties expressed opposition to such a move.

On intelligence gathering and analysis the Secretary gave particular emphasis to the role of non-federal assets. She mentioned that state and local authorities have “more eyes and ears than the federal government will ever have.” In response to several questions she went out of her way to emphasize a leading role for state and local public safety in the national intelligence enterprise.

In response to a question regarding Mexican drugwar violence the Secretary mentioned, the “best intel is often available from the local sheriff.”  Congressman Bill Pascrell (D-NJ) commended the Secretary for her commitment to “bottom-up intelligence.”

This was the Secretary’s inaugural appearance before the Committee.  Some additional thoughts later tonight or early tomorrow.

(On Thursday morning the Secretary’s testimony was covered by the Washington Post, New York Times, and other media.)

February 24, 2009

Immigration Team Emerging

Filed under: Border Security,Immigration — by Philip J. Palin on February 24, 2009


Secretary Napolitano has appointed Esther Olavarria Deputy Assistant Secretary for Policy.  The Olavarria appointment further strengthens the “fix immigration team” being assembled.  She was part of the Democrat’s so-called “shadow government” at the Center for American Progress where she focused on immigration policy.

John Morton, a Justice Department career professional, will be nominated by the President to serve as Assistant Secretary for Immigration and Customs Enforcement (ICE).  Until last month Morton was Acting Chief of the DOJ Domestic Security Section.

More background on both appointments is available in the DHS news release.

At the time of her nomination Secretary Napolitano was widely seen as a Governor who effectively threaded-the-needle with tough border security that avoided anti-immigrant fear-mongering.

In one of her first official acts the new Secretary directed “department offices and components to work together and with state and local partners to review and assess the plans and policies to address: criminal and fugitive aliens; legal immigration benefit backlogs; southbound gun smuggling; cooperation with the National Guard; widows and widowers of U.S. citizens; immigration detention centers; and electronic employee verification.”  On February 20 she was to have received oral reports on this review .

According to Monday’s USA Today, quoting DHS sources, the economic recession is contributing to a decline in illegal immigration.  This could contribute to a political environment more conducive to crafting an immigration policy fix.

January 23, 2009

Napolitano to review Cyber, Northern Border Efforts

Filed under: Border Security,Cybersecurity — by Jonah Czerwinski on January 23, 2009

Secretary Napolitano today requested a comprehensive review of DHS efforts as they pertain to cyber security and our northern border strategy. These are two more aspects of what appears to be a net assessment of existing strategy and investments, and a determination of the delta between what those efforts deliver and what we need to succeed. Earlier this week, she issued five “Action Directives” seeking reviews of other DHS operations and plans.

For cyber, the Secretary poses the following questions, to be answered in an oral report by Feb. 3 and a final report due Feb. 17:

• What are the authorities and responsibilities of DHS for the protection of the government and private sector domains?

• What are the relationships with other government agencies, especially the departments of Defense, Treasury, and Energy, and the National Security Agency?

• What are the programs and timeframes to achieve the department’s responsibilities and objectives?

Concerning the “Northern Border Strategy,” the Secretary has requested that a review respond to the following questions with an oral report by Feb. 10 and a final report due Feb. 17:

• What are the current vulnerabilities?

• What is the overall strategy for reducing those vulnerabilities?

• What are the requirements, the programs, the budget, and the timeframe for improving security along this border?

• What level of risk will remain once the programs are completed?

The final question is a critically important one. However, assessing risk remains one of the challenges for the homeland security mission. The second of the so-far seven directives issued by the Secretary actually deals with risk analysis. By January 28, she wants to know the status of risk analysis metrics and how DHS “can enhance risk management as the basis of decision making.” Look for budget priorities to follow this review.

November 7, 2008

What Awaits Dems at DHS Part II: SBInet

Filed under: Border Security,Technology for HLS — by Jonah Czerwinski on November 7, 2008

SBInet is intended to become an integrated system of personnel, infrastructure, technology, and rapid response measures to secure the northern and southern land borders of the U.S. by replacing two former programs, America’s Shield Initiative and the Integrated Surveillance Intelligence System. Both of these programs had similar goals, but were ended due to mismanagement and failure of equipment. Former Deputy Secretary Michael Jackson played a large role initiating SBInet.

DHS estimates that it will need $7.6 billion through 2011 to acquire and deploy the necessary technology and fencing along the Southwest border to carry out SBInet. The first phase of SBInet, called Project 28, is intended to demonstrate SBInet technology across a 28-mile stretch of the Arizona-Mexico border.

SBInet is managed by Boeing with subcontractors Centech Group, DRS Technologies, Kollsman, L-3 Communications Government Services Inc., L-3 Communication Systems – West, LGS, Perot Systems, Unisys Global Public Sector, and USIS.

The SBInet contract runs through September 30, 2009, with three one-year options. The cost of Project 28 is estimated at $67 million. The value of Boeing’s three-year contract to build SBInet is estimated to be between $2 billion and $8 billion. Greggory L. Giddens Mark Borkowski is the current executive director of the SBI Program Management Office at CBP.

Boeing planned to have Project 28 operational in June 2007. Problems with software and other technology led to high profile delays. With Project 28 implementation delayed until October 2007, Secretary Chertoff told a Congressional hearing that he is “not going to buy something with U.S. government money unless I’m satisfied it works in the real world.” He added, “And if it can’t be made to work, I’m prepared to go and find something that will be made to work, although I’ll obviously be disappointed.”

The system is designed to detect a “target” with radar, and then use video cameras to determine whether the radar encountered a person, vehicle, or an animal. In February 2008, the GAO reported that radar readings were too slow and were being triggered by rain and other weather-related false alarms. Moreover, camera couldn’t identify subjects beyond 3.1 miles.

Senior members of the Senate (i.e. Lieberman, Collins, Akaka, Voinovich) have expressed concerns about SBInet’s management challenges. The senators also cited an over-reliance on contractors as one of their chief concerns, raising issues about whether DHS can properly oversee the project.

So can it work? Border patrol agents began using SBInet in December 2007, and the system was officially accepted by DHS in February 2008. Boeing was awarded further contracts to upgrade software and hardware, which I believe still expects to have done by the end of 2008.

CORRECTION: Thanks to reader D.O., please note that Greg Giddens was succeeded as head of the SBI Program Office by Mark Borkowski, a retired USAF Col. who served previously as director of mission support for the U.S. border patrol. Giddens left Sept. 19 to become executive director of facilities management and engineering for CBP.

October 15, 2008

When CBP Searches Your Laptop

Filed under: Aviation Security,Border Security,Intelligence and Info-Sharing — by Jonah Czerwinski on October 15, 2008

~ Guest Blog ~

By Nathan A. Sales

Should customs officers be able to search your laptop computer at the border the same way they inspect your suitcase?

Not if public opinion is any guide. Earlier this year, the Washington Post caused some heartburn when it reported that border officials occasionally “look at information stored in electronic devices such as laptops without any suspicion of a crime.” One U.S. Senator calls the searches “truly alarming.”

He’s not alone. Laptop searches can do real harm to ordinary travelers’ privacy interests. When told that the government claims the power to rummage through computers, BlackBerries, and flash drives at the border, many people react with shock, even revulsion. A laptop search seems terribly invasive. The average traveler may be willing to hand over his suitcase for inspection, but his laptop seems a bridge too far.

Yet it’s also true that laptop searches are an important tool in the government’s efforts to detect terrorists and combat child exploitation. In fact, federal courts have decided twelve cases involving laptop searches at the border, and every single one has involved child pornography.

My sense is that suspicionless laptop searches generally are consistent with the Fourth Amendment. Under the Supreme Court’s border-search doctrine, “non-routine” searches (e.g., invasive searches of the body) are off-limits unless officers have a reasonable suspicion of wrongdoing. By contrast, “routine” searches (e.g., searches of property) need not be based on any suspicion whatsoever. Routine searches are constitutional simply by virtue of the fact that they occur at the border.

How does the border-search doctrine apply to laptops? The consensus among lower courts is that laptop searches are “routine”; officers therefore don’t need reasonable suspicion before conducting them.

The courts are probably right, for a simple reason: technological neutrality. The privacy protections we enjoy shouldn’t depend on whether we store our data in digital format or on paper. Customs can inspect mail, address books, and photo albums with no suspicion at all. Why should the rule change when we keep our correspondence, contacts, and pictures on a laptop? The mere fact of computerization shouldn’t make a difference.

Of course, laptops are different from other property. They contain more personal data than other items that cross the border; the information can be quite sensitive; and the government might keep data from a laptop for a long time, maybe indefinitely. But while laptops are different, they don’t deserve a blanket exception to the border-search doctrine. In fact, laptop searches have the potential to be less, not more, intrusive than traditional border inspections of physical objects. With keyword searches, automated computer processes can identify specific data points that might warrant further investigation. That means human beings don’t need to rifle through the laptop’s hard drive manually.

While the Fourth Amendment imposes few restrictions on laptop searches, policymakers should adopt some additional safeguards. In particular, the government should formalize the standards it uses to pick travelers for laptop searches, to ensure people aren’t singled out for impermissible reasons like race or religion. It also should adopt rules for retaining information from laptops; if a search uncovers no evidence of crime, customs would be hard pressed to justify keeping any data. And the government should apply special protections to sensitive data like trade secrets and privileged correspondence. Supplemental standards like these would equip the government with the tools it needs, while helping to prevent the privacy interests of law-abiding travelers from becoming collateral damage in the war on terrorism.

Readers interested in this topic may wish to download my recent article, “Run for the Border: Laptop Searches and the Fourth Amendment.”

Nathan A. Sales served as deputy assistant secretary of homeland security for policy development from 2006-2007 and is now on the faculty of George Mason University School of Law.

April 1, 2008

Chertoff to Convene Bloggers

Filed under: Border Security,General Homeland Security — by Jonah Czerwinski on April 1, 2008

DHS Secretary Mike Chertoff reconvenes a group of us bloggers for a roundtable tomorrow at DHS Headquarters. Topics are likely to include the recent developments surrounding REAL ID deadlines and compliance by states. Or perhaps the legal waivers Chertoff issued today that suspend environmental laws and regulations to finish building 670 miles of fence along the southwest border. (Eileen Sullivan at AP reports that these pesky laws currently prevent DHS from building the 267 miles of fencing in California, Arizona, New Mexico, and Texas.)
Readers are encouraged to submit here the questions they would like answered by the Secretary. The last time we met with him, each of us was given only enough time for one question. I hope we’ll be able to make more use of this session. Looking forward to your questions.

March 24, 2008

REAL ID Showdown Averted?

Filed under: Border Security,Intelligence and Info-Sharing,Privacy and Security — by Jonah Czerwinski on March 24, 2008

Waiting in the HLSWatch.com inbox upon my return from Big Sky, Montana, were scanned copies of correspondence between DHS Assistant Secretary for Policy Stewart Baker and Montana Attorney General Mike McGrath about the state’s request to opt out of the REAL ID Act.

DHS granted an extension on Friday to the state of Montana so that it can comply with the REAL ID Act. The only thing is that Montana never asked for an extension. Montana governor Brian Schweitzer made news over his intention to defy the law passed by Congress in 2005. Schweitzer is leading a charge (joined by Maine, South Carolina, New Hampshire, and Oklahoma) to oppose the REAL ID Act and any efforts by DHS to impose penalties for non-compliance.

The 9/11 Commission recommended that the U.S. rationalize the state identification regime in order to reduce the risk of fraud (suspected to aid terrorists and criminals alike). The Commission argued that the federal government should “set standards for the issuance of … driver’s licenses.” The REAL ID Act requires that a standardized driver’s license be used for “official purposes.” At this point, DHS proposes to define “official purposes” of a REAL ID as accessing federal facilities and nuclear power plants and boarding commercial aircraft. The main beef states have with the Act is the lack of funding to pay for the mandate. DHS is stretching out the compliance period over almost ten years (2014) to make it easier on states, but that only avoids the REAL problem according to Governor Schweitzer. Schweitzer and the Montana state legislature oppose it on principle.

(It sure doesn’t help that the Secretary suggested contrarians should “grow up” about security measures, such as the REAL ID provisions. The statement emboldened critics to examine his tenure more closely and shift the focus away from REAL ID.)

Montana seeks a complete waiver, but DHS’s Stewart Baker explained in a letter to Montana’s Attorney General that DHS has only the authority to carry out the statute or grant extensions to state’s that “meet the requirements” of the REAL ID Act.

Frankly, after Montana’s governor has called the law “nonsensical”, “kooky,” and “hare-brained,” and invited other states to join him in a showdown over “the DHS coercion to comply,” I’m impressed with Baker’s dispassionate response. Baker wrote in a response the same day he received McGrath’s letter:

Under the statute, the Department [of Homeland Security] can only grant an extension of the compliance deadline [as opposed to a waiver.] Therefore, I can only provide the relief you are seeking by treating your letter as a request for an extension.

Of course, Schweitzer’s whole deal is that he’ll never seek an extension because it would be interpreted as intention to implement the Act.

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