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ANALYZING AN IMPORTANT ISSUE
My appreciation goes out to Lt Col Allen West, former Congressman from Florida, currently running for Chairman of the Republican Party of Texas, for framing this issue for discussion. I consider Lt Col West to be a true patriot and a very prominent conservative voice in America today. He is a man I could actively support and campaign for as POTUS in 2024. I agree with what he writes 99% of the time. However his article of February 24, 2020, Sanctuary Buses brings up some issues that I feel compelled to address.
My own background is in border security as a retired Supervisory Customs Inspector / Supervisory CBP Officer. As such, I worked my entire career in official Ports of Entry [POE] and at HQ.
U.S. Border Patrol is a unit of the former U.S. Immigration and Naturalization Service [INS], now a U.S. Customs and Border Protection unit distinct from the CBP Officers who function inside the POEs. Border Patrol protects American borders by operating beyond and between the POEs.
PERTINENT DEFINITIONS
Functional Equivalent of the Border [F.E.B.]
There are physical demarcations on the northern landborder between the United States of America and Canada as well as on the southwestern border with Mexico. But if you are on an international flight that lands at Dallas-Fort Worth International Airport in Texas, you are several hundred miles into United States territory away from the Rio Grande River. Your flight may have come Non-Stop from Asia, or Europe, for instance.
But because you were in the air with no opportunity to interact with anyone on the ground, you are now at the Functional Equivalent of the Border. You are subject to U.S. Immigration and Customs formalities by CBP Officers at DFW who have the Constitutional right to warrantless border search authority which can only be conducted only by a “prudent Customs Officer at the border”. Case law has upheld this authority throughout American history.
I will say that it has been based directly upon Customs searches, not Immigration per se, which was a separate agency before 2003 in a different department of the U.S. government.
All those of us who came from legacy Customs or INS or Agriculture at the time of the merger are founding members of the Department of Homeland Security just as was recently deceased whistleblower Philip Haney.
It is my own personal opinion that the name of U.S. Customs and Border Protection was intended to emphasize this warrantless border search authority as the successor to the late, great United States Customs Service, which dated back to 1789 and the ratification of the U.S. Constitution. In fact, Customs Commissioner Robert Bonner moved seamlessly to become CBP Commissioner, with HQ remaining in the Ronald Reagan Building in Washington, DC, just a few blocks from the White House.
I distinctly recall a directive that the new agency would not be referred to under the official name Bureau of Customs and Border Protection but rather as U.S. Customs and Border Protection. Unfortunately, those who came up with the name didn’t anticipate the confusion that future generations of government officials and the media would have in not understanding the role of the Border Patrol. I still grimace everytime I hear people who should know better saying or writing U.S. Customs and Border Patrol instead of U.S. Customs and Border Protection. The “P” in the agency name stands for “Protection”, folks.
Within CBP, the Office of Field Operations manages CBP Officers within official POEs, many of which are within the heartland far distant from landborders with Canada or Mexico and from the Pacific or Atlantic Ocean or the Gulf of Mexico. Honolulu is over 2,300 miles out in the Pacific Ocean offshore from San Francisco. All these international airports are Functional Equivalents of the Border, however.
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Before I outline the role and jurisdictional authority of the Border Patrol, there are other terms that we need to define and thoroughly understand.
Extended Border
I will try to make this simple by just giving you an example of how it works. If illegal contraband is discovered or known to be within a shipment that crosses the physical landborder, very often from Mexico, then Customs and assisting federal and state/local law enforcement personnel can surveil the shipment to see where it is going and who will try to pick it up to make additional apprehensions. But, the key is that it be kept in sight and not interfered with on the way by outside entities. In other words, the illegal drugs are known to have come into the United States from foreign territory.
Nexus With the Border
This term is extremely important but must be carefully articulated to uphold. For example, Customs Officers also have warrantless border search for outbound shipments leaving the United States, including to enforce export statutes passed by Congress and signed into law by the President along with regulations of U.S. Departments of State and Commerce. Without going into too much detail, this includes items on the U.S. Munitions List [USML]. Coordinating such cases is what I did at the U.S. Customs Service HQ Operation Exodus Command Center between 1989-1991.
It must be articulated that a shipment has a nexus with the border before it comes under the authority of border officers. The precise ramifications of that are beyond our scope here.
But this concept, I believe, is key when we consider what U.S. Border Patrol is doing now in a new combined agency with both Immigration and Customs missions. While Border Patrol does confiscate drugs, undoubtedly their priority is to stop illegal aliens from entering the United States.
Entering Without Inspection [EWI]
This is a term more relevant to the Immigration mission of Border Patrol whereas the Customs mission would fall more under anti-smuggling. Title 8 of the United States Code contains the Immigration statutes and Title 19 USC is the Customs statutes.
BORDER PATROL MISSION AND AUTHORITY
If a Border Patrol Officer sees a person swim or wade across the Rio Grande, or cross illegally through the desert farther west toward the Pacific Ocean, then the matter is very clear-cut. I’m just using the Mexican border as an example, but this also occurs up north from Canada.
However, when a Border Patrol Officer encounters that person within a hundred miles or so away from the physical frontier, other factors determine whether he or she is suspected of having entered without inspection. Or, conversely, whether that person arrived at that location domestically from within the United States and did not just cross the border. In the latter case, there would be no immediate nexus with the border.
We must remember there is another agency that plays a significant role. Plain clothes U.S. Immigration and Customs Enforcement [ICE] Agents are tasked with investigating those who may be in the United States illegally using all domestic law enforcement techniques, including court-ordered warrants to conduct searches when there is no immediate nexus with the border.
There are well-established Border Patrol checkpoints in such places as San Clemente, California and near Las Cruces, New Mexico, which screen both private and commercial vehicles on public highways.
Living in Southern California years ago, I passed the one on I-5 between San Diego and Orange County many times, actually wishing to be pulled over just to see what they would say, but they have their own criteria and it never happened.
GREYHOUND AND CONSENT SEARCHES
Which brings us to the point of Lt Col West’s heartfelt article. A warrantless border search is a very different thing from a consent search away from the border.
I want at this point to state that I very much admire Lt Col West. I never gratuitously compliment anyone. Never. If you read my previous articles you see that I try to hold both sides of the political aisle equally accountable.
But I admire Allen West as a man of great credibility with an enduring love for this country who embodies an understanding of the American traditions and history that this country is all about which virtually all other politicians lack today. He has put his life on the line as a United States Army officer who made a tough decision to protect the lives of his soldiers over any personal career aspirations. He also understands the ideology of Islamic jihad better than most, with a an impressive command of history.
SO…
Should Greyhound give consent to board any of their buses anywhere in the United States for Border Patrol to identify illegal aliens? Recall what I just outlined above about the definitions of Functional Equivalent of the Border, the Extended Border and Nexus with the Border.
Lacking any of those, my answer to the question is that Greyhound is NOT honor bound to give such consent. I am confident that Allen West fully respects the protection of civil liberties of everyone.
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If a person crosses the landborder into the United States either on foot or in a private or commercial conveyance, he or she is subject to inspection. Within a Port of Entry, that is the function of CBP Officers. Elsewhere, that is the function of the Border Patrol.
But, for instance, if you boarded a bus from Bellingham to Seattle, what nexus is there with the border? There is none. Unless you can articulate how they got into Bellingham and can conduct a border search. Otherwise, you need consent as we will discuss now.
Travel within the United States is domestic. As I live in Hawaii, some folks don’t quite understand that as the 50th State, you can come here without clearing Customs or Immigration directly from any of the other 49 states, yes, including Alaska as well as the 48 contiguous States.
When you arrive here, the State of Hawaii, not federal, Agriculture will ask you some question about food and plants. When you depart back to the Mainland or CONUS, Federal USDA wIll check for plants, due to agricultural quarantines. That is not the U.S. border nor is CBP involved in either of those functions, neither CBPOs nor Border Patrol.
The very fact that there is an issue with Greyhound as a private company giving consent is indicative that border search authority is not present, because at the border there is no choice but to be subject to inspection. I’m not just concerned about protecting Greyhound’s financial interests.
Rather, I’m concerned that neither Border Patrol nor ICE nor any other government agency be allowed to go on fishing expeditions on Greyhound buses anywhere in the country. That is bringing us very close to a police state.
If they get consent, do they look at the documents of each and every person, particularly when U.S. citizens are not required to carry identity documents? If not, what criteria do they use to determine whom to focus on and whom not? That is the crux of the issue in my estimation.
As I said earlier, I was never stopped at Border Patrol inspection points on either I-5 or I-10. Why not? How exactly do they determine which vehicles to stop and scrutinize the driver and passengers?
But for now, we’re talking about Greyhound buses. Not just at such an official inspection point apparently.
I would recommend that Greyhound deal with this at the corporate level and not empower their individual drivers to decide on a case-by-case basis what to do. It is not a wise policy to refuse to stop for a law enforcement vehicle of any level of government.
I will insert here another personal anecdote as I am wont to do. For the first time in nearly 42 years since I came to Hawaii, which utilizes some unmarked vehicles as official Honolulu Police Department cars, one with flashing lights came up behind me this afternoon that was not clearly identifiable as HPD or otherwise. I’ll save the details of that for some other time, but civilians have the right to understand law enforcement authorities and their own rights. There is nothing wrong whatsoever in asserting those rights.
If I’m on a Greyhound from Laredo to San Antonio and a Border Patrol Agent asks me for my identification, I will definitely want to know what authority he or she has away from the border. If they just say Greyhound gave me consent to come and talk to you, I’m going to be very unpleased with Greyhound for violating my Constitutional rights.
I do know something about consent which is given by private industry related to border security. FedEx and other express couriers have been known to give law enforcement agencies consent to search packages in their possession. I’ll leave that matter at that but I just want to demonstrate that Greyhound isn’t the only company that has an issue with whether or not to give consent for law enforcement within their own business operations.
A VERY SIMPLE TEST
CBPOs do not need consent to do inspections at the landborder, airports, seaports, express courier hubs or within specific parameters at international mail branches.
Border Patrol does not need consent when there is a nexus with the border between Ports of Entry.
If Border Patrol asks a company for consent, then the agents are not acting upon a nexus with a border which would not require consent.
If a federal agent of any agency comes to your door and asks for consent to search your house, you are within your Constitutional rights to deny that consent and say: come back with a warrant.
I can also tell you that giving consent, any evidence found will most definitely still be used against you and you will not benefit from having given that consent.
But I’m not trying to protect guilty people here, rather the overwhelming majority of American law-abiding citizens who have done nothing wrong.
You do not want to give Greyhound the ability to usurp your right whether or not to grant consent. It is not in the price of the ticket you buy to board the bus. You must reserve that decision for yourself.
Of course, I strongly believe in border security, having spent my whole career helping to enforce it. But I also firmly believe that things must be done 100% according to law.
My personal opinion is that giving consent to a law enforcement officer to do something that he or she cannot do without your consent is never in your own best interests and you most definitely do not want to default that decision to Greyhound or any other external entity.
We want to protect our country from hostile invading forces, but we must never erode our own civil liberties in the process. Otherwise, we wind up destroying that which we are attempting to defend.
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