[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
U.S. CUSTOMS SERVICE PASSENGER INSPECTION OPERATIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MAY 20, 1999
__________
Serial 106-45
__________
Printed for the use of the Committee on Ways and Means
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
U.S. GOVERNMENT PRINTING OFFICE
66-023 CC WASHINGTON : 2000
COMMITTEE ON WAYS AND MEANS
BILL ARCHER, Texas, Chairman
PHILIP M. CRANE, Illinois CHARLES B. RANGEL, New York
BILL THOMAS, California FORTNEY PETE STARK, California
E. CLAY SHAW, Jr., Florida ROBERT T. MATSUI, California
NANCY L. JOHNSON, Connecticut WILLIAM J. COYNE, Pennsylvania
AMO HOUGHTON, New York SANDER M. LEVIN, Michigan
WALLY HERGER, California BENJAMIN L. CARDIN, Maryland
JIM McCRERY, Louisiana JIM McDERMOTT, Washington
DAVE CAMP, Michigan GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota JOHN LEWIS, Georgia
JIM NUSSLE, Iowa RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas MICHAEL R. McNULTY, New York
JENNIFER DUNN, Washington WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio XAVIER BECERRA, California
PHILIP S. ENGLISH, Pennsylvania KAREN L. THURMAN, Florida
WES WATKINS, Oklahoma LLOYD DOGGETT, Texas
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
SCOTT McINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida
A.L. Singleton, Chief of Staff
Janice Mays, Minority Chief Counsel
------
Subcommittee on Oversight
AMO HOUGHTON, New York, Chairman
ROB PORTMAN, Ohio WILLIAM J. COYNE, Pennsylvania
JENNIFER DUNN, Washington MICHAEL R. McNULTY, New York
WES WATKINS, Oklahoma JIM McDERMOTT, Washington
JERRY WELLER, Illinois JOHN LEWIS, Georgia
KENNY HULSHOF, Missouri RICHARD E. NEAL, Massachusetts
J.D. HAYWORTH, Arizona
SCOTT McINNIS, Colorado
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Ways and Means are also published
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C O N T E N T S
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Page
Advisory of May 11, 1999, announcing the hearing................. 2
WITNESSES
U.S. Customs Service, Hon. Raymond W. Kelly, Commissioner........ 16
------
Buritica, Amanda, Port Chester, NY............................... 33
Denson, Janneral, Palm Beach County, FL.......................... 37
Ed Fox & Associates, Edward M. Fox............................... 41
Johnson, Sheri Lynn, Cornell University and Cornell Death Penalty
Project........................................................ 47
National Treasury Employees Union, Robert M. Tobias.............. 50
SUBMISSION FOR THE RECORD
Caplan, Andrew M., Alexandria, VA, statement..................... 65
U.S. CUSTOMS SERVICE PASSENGER INSPECTION OPERATIONS
----------
THURSDAY, MAY 20, 1999
House of Representatives,
Committee on Ways and Means,
Subcommittee on Oversight,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:03 a.m., in
room 1100, Longworth House Office Building, Hon. Amo Houghton
(Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON OVERSIGHT
CONTACT: (202) 225-7601
FOR IMMEDIATE RELEASE
May 11, 1999
No. OV-6
Houghton Announces Hearing on the
U.S. Customs Service Passenger Inspection Operations
Congressman Amo Houghton (R-NY), Chairman, Subcommittee on
Oversight of the Committee on Ways and Means, today announced that the
Subcommittee will hold a hearing on U.S. Customs Service passenger
inspection operations. The hearing will take place on Thursday, May 20,
1999, in the main Committee hearing room, 1100 Longworth House Office
Building, beginning at 9:00 a.m.
In view of the limited time available to hear witnesses, oral
testimony at this hearing will be from invited witnesses only.
Witnesses will include the Honorable Raymond W. Kelly, Commissioner,
U.S. Customs Service, individuals who have alleged discrimination in
inspections, and experts who have studied Customs' passenger search and
seizure practices. However, any individual or organization not
scheduled for an oral appearance may submit a written statement for
consideration by the Committee and for inclusion in the printed record
of the hearing.
BACKGROUND:
In 1998, Customs seized more than 1,880 pounds of heroin and 3,750
pounds of cocaine as part of its Commercial Air Passenger operations,
according to Customs statistics. Customs officers may use strip
searches, body cavity searches, and x-rays to detect smuggling by
individuals who hide contraband such as illegal drugs inside their
clothing or who may swallow packets of drugs. Of the 71.5 million
international air passengers who passed through Customs last year,
50,892 were subjected to some level of body search, most of them simple
pat-downs. Nationally, 43.3 percent of those subjected to body searches
last year were Black or Hispanic.
Customs is now facing a number of lawsuits over body searches,
including a class-action lawsuit by nearly 100 African American women
alleging they were singled out because of their sex and race.
Commissioner Kelly has responded to the allegations by appointing an
independent commission to review the passenger inspection policies and
procedures used by inspectors and requiring a report with
recommendations by July 15, 1999.
In announcing the hearing, Chairman Houghton stated: ``Serious
allegations of racial profiling by Customs inspectors have been made by
the public, and we absolutely have to get to the bottom of them. The
views of the Customs Commissioner and individuals with direct
experiences will provide a good first step.''
FOCUS OF THE HEARING:
The hearing will focus on a review of Customs passenger inspection
operations, and, in particular, on allegations of discriminatory racial
profiling in passenger inspections and the agency's response to those
allegations. The Subcommittee's hearing will provide a basis for
evaluating a recently appointed independent review commission's work
and a record for consideration of reforms to Customs passenger
inspection operations.
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hearing date noted on a label, by the close of business, Thursday, June
3, 1999, to A.L. Singleton, Chief of Staff, Committee on Ways and
Means, U.S. House of Representatives, 1102 Longworth House Office
Building, Washington, D.C. 20515. If those filing written statements
wish to have their statements distributed to the press and interested
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Note: All Committee advisories and news releases are available on
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noted above.
Chairman Houghton The hearing will come to order.
Good morning everybody. Thank you for coming here today.
Over the past few months, we have heard serious allegations
that the Customs Service has unfairly targeted Black and
Hispanic air passengers for personal searches based on their
race. This practice is known as ``racial profiling,'' and the
purpose of today's hearing is to review those allegations and
to help determine what steps must be taken to protect the
rights of passengers while at the same time enforcing the laws
of the lands.
Customs inspectors have an important and difficult job. I
can attest to this personally having spent a good part of
yesterday with the Customs Service out at Dulles Airport. These
men and women are literally the frontline of defense in
preventing the illegal importation of narcotics into the United
States. For example, last year alone, the Passenger Inspection
operations processed 71.5 million international air passengers.
Inspectors conducted more than 50,000 personal searches,
including more than 2,000 positive searches. As a result,
Customs seized more than 640 pounds of heroin and 470,000
pounds of cocaine from international air passengers.
All this being said, we cannot permit these inspectors to
target passengers solely because they are Black or Hispanic or
of any other ethnicity--not even in the fight to stamp out
drugs. Personal searches involve physical contact, and they can
be invasive. The Constitution grants rights to everyone to
prevent such personal invasions. Unless there is reasonable
suspicion that a person may be committing a crime, race, alone,
cannot justify such a suspicion. The Constitution does not
allow it, and we must work to prevent it.
I know that Commissioner Kelly has taken allegations of
racial bias by the Customs Service seriously. He has
investigated allegations of racial bias, made personnel changes
when necessary, and ensured that strong measures are being
taken to prevent future problems. The Commissioner has convened
an independent commission to review these important matters,
and I look forward to receiving the commission report, which I
understand will be available in July.
Before introducing the Ranking Democrat, my friend, Mr.
Coyne, I would like to thank Mr. John Lewis. Mr. John Lewis is
one of my heroes, an extraordinary member of this body, and is
the person who really instigated this whole hearing. So, I
thank you very much, Mr. Lewis, for doing this, and I would
like to yield to our Ranking Democrat, Mr. Coyne, for his
remarks.
[The opening statement follows:]
Opening Statement of Chairman Amo Houghton, a Representative in
Congress from the State of New York
Good morning. Over the past few months we have heard
serious allegations that the Customs Service has unfairly
targeted Black and Hispanic air passengers for personal
searches based on their race. This practice is known as
``racial profiling.'' The purpose of today's hearing is to
review those allegations and to help determine what steps must
be taken to protect the rights of passengers while at the same
time enforcing our laws.
I understand that Customs inspectors have an important and
most difficult job. They are literally the front line of
defense in preventing the illegal importation of narcotics into
the United States. Last year alone, the Passenger Inspection
operations processed 71.5 million international air passengers.
Inspectors conducted more than 50,000 personal searches,
including more than 2,000 positive searches. As a result,
Customs seized more than 640 pounds of heroin and 470 pounds of
cocaine from international air passengers.
All this being said, we cannot permit these inspectors to
target passengers solely because they are Black or Hispanic or
of any other ethnicity--not even in the fight to stamp out
drugs. Personal searches involve physical contact, and they can
be invasive. The Constitution grants rights to people to
prevent such personal invasions, unless there is reasonable
suspicion that a person may be committing a crime. Race, alone,
cannot justify such a suspicion. The Constitution does not
allow it, and we must work to prevent it.
I know that Commissioner Kelly has taken allegations of
racial bias by the Customs Service seriously. He has
investigated allegations of racial bias, made personnel changes
when necessary, and ensured that adequate measures are being
taken to prevent future problems.
The Commissioner has convened an independent commission to
review this important matter. I look forward to receiving the
commission's report in July.
I am pleased to yield to our ranking Democrat, Mr. Coyne.
Mr. Coyne. Thank you, Mr. Chairman.
During the 106th Congress, this Subcommittee plans to
conduct a series of hearings on the U.S. Customs Service. It
has been nearly 6 years since a comprehensive review of the
Customs Service has been undertaken with several new Customs
Commissioners having come and gone during that 6-year period.
The Subcommittee's first Customs oversight hearing this
year will review allegations of racial profiling by U.S.
Customs Service inspectors. I want to commend my colleague John
Lewis for bringing this important issue to the Subcommittee's
attention and for his life-long commitment to public service
and racial equality.
I also want to thank Chairman Houghton and Customs Service
Commissioner Kelly for recognizing the importance of this issue
for all Americans and for the integrity of the Customs Service.
A significant number of U.S. citizens strongly believe that
at some U.S. airports one or more Customs agents are selecting
passengers for intrusive physical searches based on their race.
Such profiling is unacceptable. The U.S. Customs Service must
operate with the highest integrity and deal swiftly, honestly,
and fairly with serious allegations of illegal practices.
It is my understanding that Commissioner Kelly created the
independent Personal Search Review Commission in April 1999 to
address such concerns. I am impressed not only with the scope
of the Commission's review but also the fact that a report with
recommendations will be made, as the Chairman said, in July
1999.
Today's hearing will provide the Subcommittee with an
excellent framework for considering the Commission's findings
and recommendations for reform. It is my hope that in the next
few weeks we can reach a consensus on both the scope of the
problem and what must be done to address it.
Thank you.
[The opening statement follows:]
Opening Statement of Hon. William J. Coyne, a Representative in
Congress from the State of Pennsylvania
During the 106th Congress, the Ways and Means Subcommittee
on Oversight plans to conduct a series of hearings on the U.S.
Customs Service. It has been nearly six years since a
comprehensive review of Customs has been undertaken, with
several new Customs Commissioners having come and gone during
that period of time.
At the request of Congressman John Lewis, the
Subcommittee's first Customs oversight hearing this year will
review allegations of racial profiling by Customs inspectors. I
want to commend my colleague for bringing this important issue
to the Subcommittee's attention, and for his life-long
commitment to public service and racial equality.
I also want to thank Chairman Houghton and Customs
Commissioner Kelly for recognizing the importance of this issue
for all Americans and for the integrity of the Customs Service.
The issue of racial profiling is not new. Unfortunately, it
is a continuing concern at all levels of law enforcement--
whether they are local police departments, state inspection
services, or federal agencies such as the U.S. Customs Service.
The issue of racial profiling is a difficult one. Rarely
are the facts surrounding a given example as clear-cut as one
might hope. As is typical with any illegal activity, the
practice is not easily identifiable, nor is it usually
documented or acknowledged by those who practice it. Rather,
such abuses are hard to pinpoint, harder to punish, and even
harder to prevent.
What is clear to all of us, however, is that a significant
number of U.S. citizens strongly believe that at some U.S.
airports, one or more Customs agents are selecting passengers
for intrusive physical searches based on their race. What is
also clear is that such profiling is unacceptable. And finally,
it is clear that Customs must operate with the highest
integrity and deal swiftly, honestly, and fairly with such
serious allegations of illegal practices.
It is my understanding that Customs Commissioner Kelly
created the independent ``Personal Search Review Commission''
in April 1999 to address such concerns. I am impressed not only
with the scope of the Commission's review, but also with the
fact that a report with recommendations will be made by July
15, 1999.
Today's hearing will provide the Subcommittee with an
excellent framework for considering the Commission's findings
and recommendations for reform. It is my hope that in the next
few weeks we can reach a consensus on both the scope of the
problem and what must be done to address it.
Chairman Houghton. Thanks, Mr. Coyne.
Mr. Lewis, have you got an opening statement?
Mr. Lewis. Yes, Mr. Chairman.
Thank you, Mr. Chairman and Mr. Coyne for holding this
hearing. I am particularly grateful to my good friend from New
York, Mr. Houghton, for recognizing the importance of our
Subcommittee looking into this matter. Allegations of racial
profiling by Customs Service raise very serious concerns
regarding the treatment of international travelers, especially
people of color.
I first became interested in this issue when I saw an
investigative report by Atlanta's WAGA Channel 5 that
documented apparently discriminatory practices by Customs
inspectors at Hartsfield International Airport. Shortly after
WAGA aired this program, I was contacted by Customs inspectors
at the airport who expressed their belief that Customs were
engaged in a systematic, discriminatory treatment of
passengers. Since that time, my office has been contacted by
people throughout the country who have told of perceived
mistreatment and allegations of racial discrimination.
As I have studied this problem, one of my greatest concerns
has been the almost complete discretion that Customs inspectors
have when deciding which traveler to stop and search. It
appears the Customs criteria for stopping passengers is so
broad that an inspector can justify stopping just about
anybody. I fear that when given this discretion, an inspector's
racial biases, either conscious or subconscious, influence who
is stopped and searched.
Dr. Alan Zaslavsky, an associate professor at Harvard
University, has analyzed data from Customs searches. His work
provides some justification for my concern. His research
concludes that Blacks and Hispanics are much more likely to be
searched and intensively searched than are whites. By intensive
search, I mean strip searches, x-rays, and body cavity
searches. For example, a Black woman traveler is 20 times more
likely to be stopped and intensively searched than is a white
woman. With the consent of the Chair, I ask that this analysis
be submitted for the record.
In addition to the allegations of discrimination, I am
deeply troubled by the authority Customs inspectors have over
U.S. citizens. U.S. citizens can be held for days without being
allowed to contact a lawyer or make a telephone call. Customs
can detain any traveler without a magistrate or any other
judicial official's permission to detain travelers. Customs
inspectors can effectively force travelers to submit to x-rays
and drink powerful laxatives. That the Government has such
authority over its citizens is very troubling. That such
authority may be exercised in a racially discriminatory manner
is chilling and frightening.
There is no place in our Nation for discrimination. That is
why I called for this hearing. For the past 2 months, people of
color in Atlanta, people of color from across the country have
come up to me and shared their stories with me. From what I
have seen, from what I have heard, we have a problem, and we
must do something about it.
I am pleased that Commissioner Kelly has responded promptly
and responsibly to these allegations. In particular, I want to
thank Commissioner Kelly for establishing an independent
Personal Search Review Commission to examine allegations of
passenger profiling by Customs inspectors. However, I believe
that some congressional actions may be necessary to protect
travelers' rights and reduce the likelihood that innocent
people will be held incommunicado for days on end by their own
government.
I am hopeful that this hearing will shed light on Customs'
policies and practices, what the agency is doing to address
passenger complaints, and whether Congress needs to become
involved in this deeply troubling and very important matter.
Mr. Houghton, my friend, thank you for holding this hearing
and for the opportunity to make an opening statement.
[The opening statement follows:]
Opening Statement of Hon. John Lewis, a Representative in Congress from
the State of Georgia
Thank you Mr. Chairman, and Mr. Coyne, for holding this
hearing. I am particularly grateful to my good friend from New
York, Mr. Houghton, for recognizing the importance of our
subcommittee looking into this matter. Allegations of racial
profiling by Customs inspectors raise very serious concerns
regarding the treatment of international travelers, especially
people of color.
I first became interested in this issue when I saw an
investigative report by Atlanta's WAGA Channel 5, which
documented apparently discriminatory practices by Customs
inspectors at Hartsfield International Airport. Shortly after
WAGA aired its programs, I was contacted by Customs inspectors
at the airport who expressed their belief that Customs was
engaged in a systematic, discriminatory treatment of
passengers. Since that time, my office has been contacted by
people throughout the country who have told of perceived
mistreatment and allegations of racial discrimination.
As I have studied this problem, one of my greatest concerns
has been the almost complete discretion that Customs inspectors
have when deciding which travelers to stop and search. It
appears that Customs criteria for stopping passengers is so
broad that an inspector can justify stopping just about
anybody. I fear that, when given this discretion, an
inspector's racial biases, either conscious or subconscious,
influence who is stopped and searched.
Dr. Alan Zaslavsky, an Associate Professor of Harvard
University, has analyzed data from Customs searches. His work
provides some justification for my concerns. His research
concludes that Blacks and Hispanics are much more likely to be
searched--and to be subjected to intensive searches--than are
Whites. By intensive search, I mean strip searches, x-rays and
body-cavity searches. For example, a black woman traveler is
twenty times more likely to be stopped and intensively searched
than is a white woman. With the consent of the chair, I ask
that this analysis be submitted for the record.
In addition to the allegations of discrimination, I am
deeply troubled by the authority Customs inspectors have over
U.S. citizens. U.S. citizens can be held for days without being
allowed to contact a lawyer or make a phone call. Customs can
detain any traveler without a Magistrate's or any other
judicial official's permission to detain travelers. Customs
inspectors can effectively force travelers to submit to x-rays
and drink powerful laxatives. That the government has such
authority over its citizens is very troubling. That such
authority may be exercised in a racially and discriminatory
manner is chilling and frightening.
There is no place in our nation for discrimination. That is
why I called for this hearing. For the past two months, people
of color in Atlanta, people of color from across the country
have come up to me and shared their stories with me. They have
thanked me. From what I have seen, from what I have heard, we
have a problem--and we must do something about it.
I am pleased that Commissioner Kelly has responded promptly
and responsibly to these allegations. In particular, I want to
thank Commissioner Kelly for establishing an independent
Personal Search Review Commission to examine allegations of
passenger profiling by Customs inspectors. However, I believe
that some Congressional action may be necessary to protect
travelers rights and reduce the likelihood that innocent people
will be held incommunicado for days on end--by their own
government. I am hopeful that this hearing will shed light on
Customs' policies and practices, what the agency is doing to
address passenger complaints, and whether Congress needs to
become involved in this deeply troubling and very important
matter.
Thank you, Mr. Chairman, for holding this hearing, and for
the opportunity to make an opening statement.
Congressman John Lewis Calls on Congress to Address Charges of Racial
Bias by U.S. Customs--Press Release
Lewis To Introduce Bill To Protect The Rights Of International
Travelers
Washington--Congressman John Lewis (D-GA), a Member of the
Oversight Subcommittee of the House Committee on Ways and
Means, announced that he will introduce legislation to address
alleged abuses of civil rights by U.S. Customs Service
inspectors. Congressman Lewis will discuss details of his
proposed legislation at a press conference following an
Oversight Subcommittee Hearing on allegations of racial bias in
Custom Service procedures for stopping and searching travelers.
``It appears that the criteria for stopping and searching
passengers by Customs Inspectors is so broad that an inspector
can justify stopping just about anybody. I fear that, when
given this discretion, an inspector's racial biases, whether
conscious or subconscious, influence who is stopped and
searched,'' said Congressman Lewis. According to testimony
heard today by the Subcommittee, 43.3% of the 50,892
international passengers traveling in 1998 subjected to body
searches were Black or Hispanic. Harvard Statistician Alan
Zaslavsky determined that, based on customs personal search
statistics, the chances that a black woman traveler would be
intensively searched are about 20 times that for a white female
traveler.
At the hearing, Janneral Denson, an African American woman,
and Amanda Buritica, an Hispanic American woman, both testified
about how they were subjected to extensive personal searches
including X-rays, partial strip searches and body cavity
searches. Ms. Buritica testified that after enduring a strip
search at the San Francisco Airport, she was handcuffed and
taken to the hospital. There, she was forced to take laxatives
and held for more than 24-hours without being allowed to call
relatives, an attorney, or anyone else.
Ms. Denson told the Subcommittee that she was stopped and
searched while returning from abroad to her hometown of Ft.
Lauderdale, Florida. At the time, Ms. Denson was seven months
pregnant. According to Ms. Denson, she was handcuffed, taken to
a hospital in Miami, and told she would not be released until
she drank laxatives and had the results examined. She said that
she was given little to eat and drink, made to clean her own
bedpan, and physically restrained throughout the night. Less
than two weeks later, doctors performed an emergency cesarean
section and Ms. Denson's son, Jordan, was born prematurely
weighing just three pounds, four ounces.
Congressman Lewis said such credible accounts of injustice
emphasize the need to ensure that such abuses cannot happen in
the future. Congressman Lewis said, ``There is no place in our
nation for discrimination. That is why I called for this
hearing.'' While applauding action taken by Customs
Commissioner Raymond W. Kelly in appointing a Personal Search
Review Commission, Congressman Lewis said that action by the
Congress is necessary to ensure that the civil rights of
international travelers are respected.
``Customs does not need a magistrate's or any judicial
officer's permission to detain travelers. Customs does not
permit detainees to have legal counsel and can effectively
force travelers to submit to X-rays and drink potent laxatives.
That the government has such authority over its own citizens is
very troubling. That such authority may be exercised in a
racially discriminatory manner is chilling,'' said Congressman
Lewis.
Congressman Lewis will discuss the introduction of proposed
legislation to ensure that all international travelers are
treated fairly when searched or detained at a Customs
processing center. To be introduced in this Congress, the
``Civil Rights for International Travelers'' will:
Provide travelers access to an attorney within
24 hours of their detention by U.S. Customs.
Require U.S. Customs to obtain approval of a
judicial magistrate before it can detain a traveler beyond 12
hours.
Require U.S. Customs to inform travelers of
their rights and the process and procedures U.S. Customs will
adhere to when stopping and searching passengers.
Require U.S. Customs to compile annual data on
the ethnicity and sex of passengers stopped and searched by
inspectors, the type of search conducted, and the result of the
search.
Require periodic training and retraining of U.S.
Customs inspectors, especially in the area of racial
sensitivity.
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Chairman Houghton. Thanks, Mr. Lewis.
Mr. Hayworth, have you got an opening statement?
Mr. Hayworth. Mr. Chairman, I would just like to thank you
for holding this hearing.
Undergirding our constitutional rights that our Founders
had the incredible foresight and wisdom to provide for us in
Philadelphia over two centuries ago, there is a basic notion of
law and a question that emerges, and that is, what is
reasonable? And I hope during the course of today's hearings to
hear from Commissioner Kelly and to gain insight, and, as my
colleague from Georgia said, if there are abuses, to act upon
those abuses.
It is in that spirit that we conduct these hearings; not as
Republicans or as Democrats, but as Americans determined to
exercise our constitutional role of oversight, and, again, I
thank the Commissioner, and I thank my colleagues and
especially you, Mr. Chairman, for holding this hearing.
Chairman Houghton. Thanks very much, Mr. Hayworth.
Now, I would like to call on Commissioner Kelly for his
testimony.
STATEMENT OF RAYMOND W. KELLY, COMMISSIONER, U.S. CUSTOMS
SERVICE
Mr. Kelly. Thank you. Mr. Chairman, Members of the
Committee, thank you for giving me this opportunity to testify.
The Customs Service has the responsibility for intercepting
contraband entering the United States; contraband that includes
everything from child pornography, to nuclear materials, to
illegal narcotics. Narcotics smuggling dominates all of this;
it is where the money is. Most of us are all too familiar with
the price extracted by the drug cartels to feed the country's
appetite for drugs. The price is drug addiction, financial
ruin, destroyed families, neighborhood deterioration, and debt.
Drugs kill and maim their users and put everyone nearby at
risk--innocent citizens, unborn children, and law enforcement
officers who come up against the cartels.
As the leading drug interdiction agency, Customs has been
granted unique search authorities to combat this threat. It is
an important and indispensable tool in our efforts to stop a
ruthless foe provided it is used fairly and judiciously. As
committed as we are to the fight, I do not want to add civil
liberties to the list of victims. We will not allow individual
rights to become casualties in the war on drugs.
The complaints we have received about racial prejudice in
selecting passengers for searches are very disturbing. It is
certainly not the Customs Service's policy, and it will not be
tolerated as a Customs Service practice anywhere.
When these complaints surfaced, I appointed, Mr. Chairman,
an independent commission from outside the Customs Service to
review our personal search practices. We are looking for an
objective-handed assessment. The commission members are in the
midst of their work now. I don't want to prejudice with my
comments here what they may ultimately find. Nonetheless, the
seriousness of the charges were such that we have taken
additional, immediate actions to improve and oversee the
personal search process.
Where, in the recent past, any individual inspector could
decide whether or not to make a personal search, a supervisor
must now approve that decision. Now, only a port director, the
highest ranking field manager on site, can make the decision to
conduct an x-ray of a passenger.
In addition, we have made legal counsel available to
inspectors at five of our Nation's busiest airports--Newark,
JFK in New York, Boston, Atlanta, and Dulles in Washington. A
Customs lawyer is now on call 24 hours a day to assist our
inspectors at these locations in determining whether or not
they have sufficient grounds to move from one stage of a
personal search to the next. We will soon expand this program
to the entire country.
We have instituted better recordkeeping procedures. Before,
data collection on personal searches was weak and inconsistent.
To remedy this, we have formed a national Passenger Data
Analysis unit at headquarters that will maintain information on
all personal searches. Field personnel are now required to file
an inspecting officer information log that records all aspects,
including race, of any search they conduct. This information
will be transmitted to the new analysis unit, and will be used
to monitor trends in our personal searches.
We have also formed an internal task force to review the
criteria used by our field personnel to select travelers for
personal searches. We want to be sure that the criteria used to
determine if a personal search is warranted are not arbitrary
and certainly not based on race. Our task force will also make
sure that our criteria are recent and up to date. For example,
in the past, Customs might have considered the purchase of an
airline ticket just a few days in advance of a trip as suspect
criteria. With the explosion of last-minute discount travel and
the use of the Internet to purchase such tickets today, this
indicator may no longer be valid.
We have also undertaken a series of comprehensive reforms
in our inspection areas to improve the passenger environment.
These changes focus on three areas: information, training, and
technology. In the past, our communications with the traveling
public was unclear and unfocused. Providing a coherent
statement about Customs' mission was a very important first
step; informing travelers about our practices and policies was
another. We are achieving this by installing improved signage
in our inspection areas, providing new comment cards for
passengers, revising our declaration forms to cut down on
confusion, and making new brochures available that explain why
Customs performs inspections and searches. These include a
document entitled, ``Why Did This Happen to Me?'', that
explains the personal search for those who are referred for a
secondary inspection.
A new Customer Service unit has been established at
headquarters to underpin out inspection area reforms. They will
be responsible for handling and tracking all passenger
complaints. Training is a crucial area of reform. The personal
search, even in the most impartial of circumstances, is a
traumatic process. It is only compounded if accompanied by a
callous disregard on the part of our personnel for the
emotional well-being of passengers who are searched. Clearly,
this has occurred in several cases.
We are addressing this problem with a battery of training
for all our inspection personnel. Regular instruction in
interpersonal communications, cultural interactions, passenger
enforcement selectivity, and confrontation management is
already being delivered. This training will continue throughout
our inspectors' careers.
To compliment the training our employees receive, we are
revising the Customs Personal Search Handbook. Instructions
will be clearer, tighter, and will require strict supervisory
controls over the entire process.
Technology may also make the personal search less
intrusive. We are deploying advanced technology wherever
possible to minimize physical contact during the personal
search. In certain airports, such as JFK in New York and Miami
International, travelers selected for a personal search can
elect to go through a body scan, an advanced form of x-ray.
These devices, as well as regular x-ray equipment, will be
deployed soon at other major airports around the country. We
need more of this equipment, and we have asked for $9 million
in the fiscal year 2000 budget to obtain it.
We need to be more sensitive to concerns about our personal
searches--that is clear--yet we don't want this issue to be
exploited by the drug cartels. We know from experience that the
cartels will try to take advantage of a situation so they can
smuggle more drugs into our community and that they will use
anyone to do it. It is an extremely difficult problem for us.
Last year, we seized 2\1/2\ tons of illegal narcotics from
air passengers; half a ton of this was concealed on or in
passengers' bodies. Smugglers are men and women of all ethnic
groups--young and old, rich and poor. Disabled people are even
used in the hopes that Customs will be unsuspecting. Worse, the
science of internal smuggling is advancing. The cartels have
devised ways to make mules--as they call these body carriers--
look less suspicious. Medications or laxatives often mask
physical symptoms they would otherwise display.
Let me give you a sense of what we are up against. These
pellets are made from the fingers of rubber gloves. They
weight, each, about 18 grams. A smuggler would typically
swallow about 60 of these or even more; that is roughly one
kilogram or 2.2 pounds. Each of these pellets would be filled
with heroin and worth about $1,800 on the streets of New York.
A whole kilogram would be worth about a quarter of a million
dollars, perhaps more.
While this is an example of what pellets of heroin look
like, Mr. Chairman, this in my hands is the real thing. These
pellets of heroin that are in evidence bags were seized this
past weekend from a swallower who arrived at Dulles Airport
from Ethiopia. It totals 558 grams. Inspectors became
suspicious of the passenger after he exhibited extreme
nervousness and was unable to produce tickets for the
destinations he said he was traveling to in the United States.
A pat down search of the passenger and a search of his baggage
proved negative. The Customs inspector subsequently obtained
permission from his supervisor to obtain an x-ray. The
passenger willingly signed a consent form. After tests at the
hospital and x-rays showed him positive for carrying drugs, he
passed 25 pellets, what you see here before you. This is a
total of 40 pellets that he was carrying in his body.
As lucrative as the payoff may be for the carriers, they
are putting their own lives at great risk. Deaths from leakage
of the pellets during transport is commmon. In 1998, alone, six
carriers died in a 6-month period. Victims over recent years
have included a pregnant mother who died after ingesting 157
pellets of cocaine. Her unborn child did not die but instead
suffered severe brain damage. We get particularly upset when
carriers are people like this as well as children. Just 2\1/2\
weeks ago, we stopped a 17-year old boy who was an internal
carrier. Doctors were considering emergency surgery to prevent
the drugs he was carrying from killing him. Fortunately, the
boy survived after passing 30 pellets of cocaine.
Again, I want to repeat, it would be a grave mistake for
the cartels to interpret our concern for the rights of the
traveling public as a weakening of resolve. The Customs Service
must get better at pulling the drug smugglers out of line and
allowing the law-abiding traveler to proceed unobstructed. In
no instance will we allow racial bias to be tolerated as a
substitute for good law enforcement. It is my duty as
Commissioner of Customs to ensure that the law enforcement
policies and practices of our agency are carried out with
fairness, civility, and impartiality. I expect no less. People
who enter our country, all people, should expect no less.
We have initiated many changes at Customs to guarantee that
the rights and dignities of travelers are protected in the
process of what is one of our greatest challenges--stopping the
inflow of drugs. And I certainly welcome any additional
recommendations this Committee may have.
Thank you, Mr. Chairman.
[The prepared statement follows:]
Statement of Raymond W. Kelly, Commissioner, U.S. Customs Service
Mr. Chairman and Members of the Subcommittee, I want to
thank you for the opportunity to present Customs plans to
address the very disturbing allegations of racial bias that
have been made by members of the traveling public about our
personal search selection process.
I want to assure the Committee that this issue is a top
priority for the Customs Service. Real or perceived, bias is
not and will not be tolerated in any part of Customs
operations.
The drug cartels employ any and all means to thwart our
interdiction activities, including smuggling drugs on and in
the bodies of travelers arriving in our ports of entry. During
Fiscal Year 1998, Customs inspectors discovered over 1,100
pounds of heroin and cocaine smuggled by this means. Finding
these drugs is not an easy task.
Over 71 million commercial air passengers arrive in the
U.S. each year. Customs personnel must somehow sift the drug
carriers among this vast number from the majority of law-
abiding travelers. Smugglers, however, fit no single profile.
They come in all shapes and sizes, social backgrounds, and
ethnic groups. Drug cartels will not hesitate to exploit anyone
they can, especially those who would seem the least suspicious.
We must strive to improve our personal search procedures to
ensure that the rights of travelers are protected at all times,
and that this very special authority is used effectively,
judiciously, and with minimal intrusiveness.
Customs airport personnel work hard to carry out their jobs
as best as they possibly can in a difficult environment. The
personal search is one of their greatest challenges. In theory,
it is a procedure that they undertake as a last resort and with
the maximum of supervision. In practice, it is admittedly a
procedure that we have found in recent years to have suffered
from poor oversight, insufficient training, and a lack of
supervision. This may in large part contribute to the
allegations of bias that surround Customs use of the personal
search.
In addition, our treatment of passengers undergoing the
personal search has, in some instances, been sorely deficient.
Communication with travelers detained for a search was poor,
information was lacking, and legitimate questions went
unanswered. We need to do a much better job of utilizing the
interpersonal skills required for this difficult and delicate
task.
In response to these shortcomings, we've undertaken a
variety of important measures. These include the formation of
internal and external committees to review our search
procedures; immediate reforms to certain steps in the personal
search such as strengthening the role of supervisors; and far-
reaching changes to our passenger processing environment that
focus on improved information, training, and technology.
Prior to coming to Customs, as Undersecretary for
Enforcement at the U.S. Treasury, I directed the Office of
Professional Responsibility (OPR) to review Customs passenger
selection practices and related training. OPR's draft final
report is undergoing review by the Treasury Department at this
time.
In addition, the General Accounting Office (GAO) has been
reviewing Customs air passenger processing. We have been
cooperating with the GAO by providing extensive access to
records and field sites. The final report of the GAO is
scheduled for completion in May 2000.
Lastly, Customs has formed two committees, one internal and
one external, to review the procedures used in the personal
search. Our internal task force, The Passenger Processing
Selection Committee, is composed of senior field management
from a cross section of the country as well as a representative
from headquarters. The task force will look at the criteria we
use to identify passengers for further inspection. It will
analyze the search data to determine if we are correctly
selecting the highest risk passengers. The review is focusing
on Customs air passenger selection operations nationwide. Its
work is well underway and will be delivered to my office
shortly.
In response to recent allegations, we appointed an
independent Commission from outside the Customs Service to
review our personal search practices. The Commission is
composed of prominent government leaders and is led by
Constance Newman, Undersecretary of the Smithsonian
Institution. In addition, we appointed an Independent Advisor,
Sanford Cloud, President and Chief Executive Officer of the
National Conference for Community and Justice.
The Customs Personal Search Commission will have unfettered
access to Customs facility and personnel. Its work is already
underway, and it will report in mid-July.
To address problems in the supervision of personal searches
we are instituting a port-level self-inspection and
certification process. Port directors will be required to
certify, in writing, that they are in charge of the personal
search process and that it is being carried out correctly at
each port. The certification will be fielded in June.
We are revising our Personal Search Handbook to require
additional levels of approval and oversight from supervisors
and managers for any searches. It will include a clear
statement of Customs personal search policy in language that is
not open to misinterpretation. The revised handbook will be
approved this month and be issued to all Customs officers,
together with an eight-hour training course covering the new
policy.
While management oversight is a key to resolving these
problems, we also set out to review our entire passenger-
processing environment. The review paid particular attention to
the procedures that occur when passengers are selected for a
secondary inspection. We contracted with Booz-Allen & Hamilton,
Inc., to conduct a study called Interpersonal Communications:
U.S. Customs Service and Air Travelers. The final report was
issued in February. It included many good recommendations for
improvement, recommendations we have already acted upon. Our
changes are grouped into three categories: Information,
Technology, and Training.
Information
New signs are being installed at major airports that will
better inform passengers about Customs mission and how we
conduct enforcement operations. The improved signage is part of
a ``new look'' that air passengers will see in the coming
months in our airport facilities.
We are reaching out to the traveling public, inviting
passenger feedback through postage paid comment cards that will
be prominently displayed at inspection area exits. We've
already received many useful comments from passengers in the
cards that have been sent in to date.
Any complaints that are received are being processed by a
new Headquarters Customer Satisfaction Unit (CSU). All
correspondence, including the Comment Cards, is now handled by
the CSU. This centralization at Headquarters ensures that
complaints are correctly addressed and that passengers receive
appropriate feedback, including a personal phone call to
address their concerns. The CSU is responsible for keeping
senior Customs managers informed on the concerns of the
traveling public and to identify any emerging trends regarding
how we are delivering service.
To address passenger concerns in person, we are
revitalizing the Passenger Service Representative (PSR)
program. We are redefining the roles of these individuals, who
are designated liaisons to the travelling public, to ensure
that they spend more time on the floor and are more visible to
passengers.
We are also taking steps to improve our passenger
enforcement data collection and analysis. We are making sure we
have accurate and informed data on all the personal searches
our filed personnel conduct. This was not done well enough in
the past. Immediate improvements have been initiated through
policy changes (such as requiring inspectors to fill out a
comprehensive entry on any searches they conduct), computer
system updates, and the formation of a Headquarters unit
dedicated to passenger search analysis.
We're revising the Customs Declaration Form to incorporate
new information on the enforcement process, and to ensure it is
in a better format and easier to understand for all travelers.
The new form will be completed and available later this summer.
New brochures are being produced to better inform the
public and to address frequently asked questions from
passengers who have undergone an examination. The brochure is
entitled ``Why Did This Happen to Me?'' More informational
brochures are forthcoming, and informational advertisements are
planned for in-flight magazines. Passenger surveys have
demonstrated that this type of on-board information is often
the best way to convey Customs policies to arriving travelers.
Technology
We are striving to make the environment in which we conduct
personal searches less imposing and obtrusive. The use of
privacy screening in baggage examination areas is one option
being considered. In addition, we are changing the appearance
of our search rooms to make them less clinical. Anything that
we can do to alleviate the stress of travelers helps both those
we process as well as Customs inspectors themselves.
To make the personal search less intrusive, we're deploying
as much advanced technology as possible. Body scan imaging
technology is currently in use at JFK airport in New York City
and Miami International airport. This technology minimizes the
need for physical contact in a personal search. These devices,
which are only used at the consent of the selected traveler,
permit inspectors to see if contraband is concealed under
clothing. We plan to install more of this technology in other
major airports across the country in the coming months.
Customs is also developing a latex breathalyser to detect
if a passenger has swallowed drugs wrapped in rubber pellets.
Such a test could help eliminate uncertainties about whether or
not a passenger needed to be transported to a medical facility
for an x-ray. In addition, our Customs FY 2000 budget includes
a request for funding for mobile digital x-ray equipment. This
technology would greatly reduce the time spent transporting
passengers to off-airport medical facilities for an x-ray. It
would also eliminate the need to use restraint devices, such as
handcuffs, to safely transport passengers to outside medical
facilities.
Training
Better training for our personnel will help minimize the
poor treatment some travelers have complained about. Customs
inspectors are receiving extensive training on interpersonal
communications, cultural interaction, confrontation management,
personal search policy, and passenger enforcement selectivity.
An initial set of training courses totaling forty hours will
become part of an annual requirement that will also be given to
all new inspectors at the Customs Academy.
Customs takes the issue of personal searches and the recent
controversy that has surrounded this authority very seriously.
We will continue to do whatever we can to improve this process,
and to work with the Congress to ensure that the dignity and
rights of all individuals are protected as we carry out our
mission.
Chairman Houghton. Thanks very much, Commissioner.
I am just going to ask one question, and then I am going to
pass the questioning around to other members of the panel.
Can you break down a little bit this Personal Search Review
Commission? Who is on it, and what do you expect to get out of
it?
Mr. Kelly. The Commission is chaired by Ms. Constance
Newman, certainly well known and very well respected in the
Washington community. She is currently the Under Secretary for
the Smithsonian Institute, former Director of the Office of
Personnel Management. Also on that Committee is Ms. Robin
Sanders who is an employee of the National Security Council.
Ms. Sanders, traveling into the country with Congresswoman
McKinney from Georgia, was stopped and claimed abusive
treatment and has also stated that she has been stopped
virtually every time she comes into the country. Ms. Anna Marie
Salazar, who is the Deputy Assistant Secretary of the
Department of Defense, is of Hispanic origin. Hubert Bell is a
former Secret Service agent. He is the Inspector General of the
Nuclear and Regulatory Commission. The outside government
member is Mr. Sanford Cloud, recommended by Ms. Newman, who is
the director of the National Council for Justice.
What we expect to get from the Commission is certainly a
totally unfettered, objected examination of our processes. We
would like to have their sense, their indications as to whether
or not racism or racial bias is involved in the decisions made
to select people for personal search, and we certainly are
looking for their recommendations as to how we can improve the
process in any way.
Chairman Houghton. All right, thank you.
Now, Mr. Coyne.
Mr. Coyne. Thank you, Mr. Chairman.
Commissioner, you had mentioned that you had put in a
request, or you are about to receive $9 million for x-ray
equipment. How far is that going to go toward accomplishing
what you want to do? In other words, how much of your need is
going to be met by spending $9 million?
Mr. Kelly. It will address some of the concerns we have at
major airports. It won't cover our 20 major airports, but it
will cover the ones that have 75 percent of the volume.
What we are looking to do with technology is two things:
first, we are looking to expand our body scanning equipment.
This is the light x-ray machine that does not look through the
body but does look through the clothing. This would be in lieu
of a pat down. We are now giving passengers the option in
Kennedy Airport and in Miami, rather than being patted down to
go in front of this machine.
In addition, we are looking to put full-blown x-ray
equipment at these sites. If in fact an x-ray is determined to
be necessary now, we are actually transporting people off the
airport. This can be a long trip; it is a traumatic experience
for anyone that has to undergo this. We are attempting to
construct, with adequate medical personnel, x-ray facilities
right in our secondary areas, so there would be no
transportation involved. We have also given people the option
in JFK to go right to an x-ray machine without any search at
all. However, since this is a protracted process where you are
actually traveling--well, in JFK you are staying on the airport
grounds but you go into a clinic--it is probably impractical
now, because people won't want to take another 2 hours or 3
hours to do that. So, we are looking to have the x-ray
machinery right in the secondary location.
Mr. Coyne. Thank you.
Chairman Houghton. Mr. Hayworth.
Mr. Hayworth. Thank you, Mr. Chairman, and, Commissioner
Kelly, again, our thanks to you for coming to testify today,
and obviously we have great concerns, because this is a classic
case of one of the tensions inherent in our constitutional
Republic. You have concerns for collective security and
apprehend law-breakers and to cease the spread of contraband.
On the other hand, we, as American citizens, have individual
rights, constitutional rights which must be protected, and so
it is that challenge of striking a balance that brings us here
today and also the legitimate oversight concerns as eloquently
expressed by my colleague from Georgia.
Commissioner Kelly, let us take the legal route, if we can
for a second here. Where does Customs get its authority to
conduct personal searches?
Mr. Kelly. The authority lies in title 19 of the U.S. Code.
There are several particular sections that give Customs broad
search authority, and, of course, through the years--Customs
has been in existence since 1789--there have been several court
cases--Supreme Court cases that have upheld that authority.
Mr. Hayworth. So, it is statutory authority, and based on
the court cases--Supreme Court cases and other case law--have
we drawn any limitations based on that body of case law?
Mr. Kelly. There are limitations, certainly, it depends on
what circuit you are in. In certain instances, the ninth
circuit, fifth circuit, and second circuit have all put in
restrictions as to when you have to go to court to get an order
to do further searches. I believe the ninth circuit is a 48-
hour time limit; the other two circuits are 24 hours, maybe
just more than 24 hours, but those time limits have been
imposed.
Mr. Hayworth. So, there is a jurisdictional discrepancy, if
you will, based on the geographic court circuits.
Mr. Kelly. Yes, sir.
Mr. Hayworth. OK, so would you welcome a congressional lead
in this matter to make this uniform? Would that be helpful to
your agency?
Mr. Kelly. I think it may be helpful. Yes, consistency in
that area may be helpful.
Mr. Hayworth. Is Customs' authority to conduct personal
searches different than what a city police officer might have,
and how would you describe those differences if they exist?
Mr. Kelly. Yes, it is much broader. Just, inherently, being
on the border gives Customs exceptions to fourth amendment
restrictions that would be applicable to police officers on the
street. For instance, in the police situation, you would need
reasonable suspicion to pat down an individual. Customs has
broader authority than that even though we have imposed
reasonable suspicion requirements ourselves to go further into
the search process.
Mr. Hayworth. You mention reasonable suspicion. Could you
help categorize for us or describe for us what level of
suspicion a Customs officer or a Customs inspector must have
before, let us say, for example, a pat down is conducted?
Mr. Kelly. Well, there are three levels of suspicion, as
you may know, in the law. There is mere suspicion, which is
very minimal; then, there is reasonable suspicion, which is
something more than that but not probable cause. Probable cause
is when you have enough to effect an arrest, to take someone
into custody. Mere suspicion, as far as Customs is concerned,
is a totality of indicators that would lead an inspector to
believe that further investigation is needed.
We have a handbook, a list; it is not all-inclusive, but it
is a list of indicators that are used, and it is being expanded
on. These are indicators that have proven to be somewhat
successful in the past. We look for those indicators to be
specifically spelled out by the inspectors before going
forward. It can be one or two or more of these indicators; we
don't have a quantifiable restriction on it. It depends,
really, on the totality of the circumstances, but it is one of
those areas that, again, it is difficult to put a precise
definition on, but we look at a whole variety of factors, and,
particularly, as far as Customs is concerned, our indicators
focus specifically on the issue at hand. In other words, it is
somebody potentially smuggling some contraband in. It is the
type of clothing. Are they in sunglasses or something that is
adding--certainly not by itself, but we have experienced people
who don't want eye contact or drug users themselves who may be
wearing sunglasses, but you look at a series of these
indicators before it rises to reasonable suspicion.
Mr. Hayworth. Thank you very much, Commissioner, and thank
you, Mr. Chairman.
Chairman Houghton. OK, thanks, Mr. Hayworth.
Mr. Lewis.
Mr. Lewis. Thank you, Mr. Chairman, and thank you, Mr.
Commissioner, for being here.
Along the same line that my friend and colleague from
Arizona raised, would it be helpful for Congress to establish
uniform rules to govern how long a passenger can be held
without speaking to an attorney, and govern when a judicial
magistrate must be involved?
Mr. Kelly. I think it may be helpful, yes, sir. I think
there are some gray areas in the case law, and I think our
inspectors would welcome more precise direction. We are
certainly looking at that internally ourselves.
Mr. Lewis. Mr. Commissioner, it is my understanding that
white men are found to be carrying drugs more often than any
other type of traveler. If that is the case, then why do Black
and Hispanic travelers account for 43 percent of all passengers
stopped and search?
Mr. Kelly. I didn't hear the first part of your question,
but----
Mr. Lewis. I think I tried to suggest or state that white
men--white travelers who happen to be men--white men are found
to carry drugs more often than any other type of travelers. If
that is the case, then why do Black and Hispanic travelers
account for 43 percent of all the passengers stopped and
searched?
Mr. Kelly. I think you have to factor in where the
travelers are coming from. We have identified high risk
countries, and we have identified what we consider to be high
risk flights. Certain countries--which we use the NCSTR list,
the State Department list identifying countries that are source
countries or transit countries for drugs--may have a
preponderance of certain ethnic groups on those flights, more
so than other flights.
Mr. Lewis. Are you telling me a flight coming in from
Jamaica into Atlanta to Hartsfield Airport, there are going to
be more Black passengers on that plane than Whites?
Mr. Kelly. No, but there may be a significant number of
Black passengers, more so than flights coming from other places
overseas; there may be Jamaican Nationals on that flight. So, I
think before we say that the disproportionate number, I think
we also have to look at source countries--countries that have
been determined to be high risk--and take a look at the high
risk flights and the passengers who are on those flights.
Mr. Lewis. Mr. Commissioner, according to Customs, less
than 1 percent of all drugs confiscated by the agency are
discovered through personal searches. As you know, these
searches are invasive and demeaning to the travelers, the vast
majority of whom are innocent. In light of the small percentage
of drugs found through personal searches and the burden these
invasive searches place on innocent travelers, do you think
such demeaning tactics are necessary in a free, civilized,
democratic society?
Mr. Kelly. I certainly don't support demeaning tactics, and
I think we have to do a much better job of being considerate to
people who are subjected to this traumatic experience, and I
think some of things I have laid out that we are doing will be
very constructive and helpful in this regard.
I do think that it does provide a deterrent. If we don't do
searches at all, I think we will see a significant increase
particularly as far as heroin is concerned--internal smugglers
bring it in their person or on their person into the country--
but we clearly have to do a much more professional job of how
we administer this. We would much prefer to do it through
technology.
This is an unpleasant task, as you can imagine, for the
inspectors. We know it is unpleasant; we know it is difficult
and traumatic for the traveling public, anyone who is subjected
to this, but this process of obtaining these pellets is also
unpleasant for the inspectors. We hope that we have some
answers in technology.
Mr. Lewis. Mr. Commissioner, I think we all want to
prohibit drugs from coming into the country. At the same time,
we don't want to violate and abuse the civil rights and civil
liberties of people, and I appreciate all of the changes that
you are suggesting and recommending, but there may be a mindset
in Customs, there may be a culture there that we need to deal
with. How do you explain it? How do you plan to deal with it?
Mr. Kelly. It may be a mindset, and we have to ferret it
out. We have to address it through training--again, we hope the
Commission will be helpful in identifying that--and then we
have to address it through discipline. If these offenses, these
type of practices are identified.
Mr. Lewis. Thank you, Mr. Commissioner. Thank you, Mr.
Chairman.
Chairman Houghton. OK, fine. Mr. Hulshof.
Mr. Hulshof. Thank you, Mr. Chairman.
Mr. Commissioner, before being honored by Missouri's Ninth
District constituents to serve them here in Washington, I spent
the entirety of my professional career in the criminal justice
system--3 years as a court-appointed public defender and then
10 years as a prosecutor. Part of my role, also, was to help
train Missouri law enforcement officials especially in the
areas of search and seizure, laws of arrest, matters of trial
advocacy and the like, and of course one of the challenges that
I had as an instructor teaching new police officers was this
ever-shifting sand, if you will, regarding search and seizure
law, because I do believe--and I think even the gentleman who
just questioned you believes--that there is a compelling public
interest in stemming the flow of drugs and contraband coming
into this country. Yet, courts constantly wrangle with that
public interest in balancing an individual's right of privacy,
as the gentleman from Arizona talked about earlier. And, often,
court decisions take these individual cases and have to weigh
these interests and the intrusiveness of the search and the
like.
My question to you, sir, is what sort of legal training is
given to a Customs agent, and, more importantly, what
continuing legal education is given to a Customs official?
Because, as you know--and you mentioned it in your testimony--
these court decisions aren't static. I mean, each case that
comes before the Ninth Circuit, the Fifth Circuit, the Second
Circuit is based on precedent, and yet the reason that they
have taken the case to judge is because it presents a new
wrinkle of law. So, what legal training is given to Customs
officials to try to stay on top of this shifting case law?
Mr. Kelly. Congressman, I think it is fair to say that up
until the recent past there has been inadequate training. There
hasn't been adequate training for inspectors involved in this
very sensitive, very delicate area. We have embarked in a major
training initiative in which our counsel, our lawyers, go out
and train inspectors. We have cultural awareness training,
managing conflict training.
We are bringing on board, starting June 1, a training
director for the entire agency that will enable us to monitor,
to develop these types of training programs. We haven't had one
in the agency. So, training is extremely important in this
area, and we are focusing on it to a great extent. But I think
it is fair to say that it is an area that has needed a lot more
attention than in the past.
Mr. Hulshof. And I certainly appreciate Customs--in your
testimony, that resources are necessary for the equipment and
on-site x-ray machines and the like, but, of course, before
even subjecting a traveler to even that minimal intrusiveness,
there has to be the legal basis to do it, and so I really would
encourage you in that regard, and I understand that the Ninth
Circuit and the Fifth Circuit may provide in a similar factual
situation different conclusions that they finally find their
way to the U.S. Supreme Court.
But with the legal authority, legal training, I would
really encourage your organization, your group to--especially
because those agents on the frontlines are having to deal with
an individual situation--you mentioned just a few of the
factors. It may be that someone is wearing sunglasses; it may
be that in the mind of a Customs agents that that passenger is
somewhat furtive or suspicious, and yet trying to come up with
an objective standard, which is what we want. I think from the
earlier questions, the idea that we, in Congress, can pass a
law, and we want to eliminate--I think in your testimony--the
gray areas, and yet even if we were to pass a law, that law
would be challenged given the facts of some stop that is made
by a Customs agent, and that would go through the court system,
as well.
Now, one final question: How are your inspectors--because
courts--I think you would agree with me--take a very dim view
of racial profiling--and so how are the Customs agents--
especially reading the testimony of the witnesses we are going
to have here later today--how are Customs agents trained to
avoid racial profiling?
Mr. Kelly. Well, it is specifically stated in our handbooks
that you cannot--there is prohibition against doing that, and
it is in the training factors, but it has to be reinforced. We
need constant in-service training in this area. I mean, we are,
on paper, saying that this shouldn't happen. We have to
continue to reinforce that.
Mr. Hulshof. My time has expired. Thank you, Commissioner.
Thank you, Mr. Chairman.
Chairman Houghton. Thank you.
Mr. Neal.
Mr. Neal. Thank you, Mr. Chairman.
Mr. Kelly, how much information are Customs inspectors
supposed to give passengers about why they were stopped?
Mr. Kelly. They are supposed to give them information in a
general way. They are not supposed to tip off criminal type
information that comes in, and we do get that information. We
get our own computer system; they have look-outs from other
agencies, that sort of thing. But, for instance, they would
tell someone that, generally speaking, another agency has given
us information or something general, but I think in the past
what has happened is that there has been very little
communication, and this has upset people; people want to know.
You know 10 years ago, 15 years ago, Customs used to stop
everybody and talk to them and look in their luggage. Now,
because of the huge volume of traffic, this practice has
stopped, so we have become selective, and people understandably
want to know, ``Why me? Nobody else is being stopped, and I am
being stopped,'' and we haven't done an adequate job in my
judgment, and we are starting to tell people why they are being
detained. And we also now have publications. We have this
pamphlet that I spoke about, Why Did this Happen to Me?, those
sorts of things to better inform people as to why they are
stopped.
Mr. Neal. As opposed to the silence that was once common?
Mr. Kelly. Yes, and silence was just a practice that people
picked up, the inspectors picked up. It wasn't a policy, but I
think it is just easier dealing with people who are
understandably concerned and upset that they just didn't say
anything.
Mr. Neal. And how do they regard questions that are asked
of them when they do detain or stop a passenger?
Mr. Kelly. It is hard to generalize. Most people with
authority, generally speaking, might resent, somewhat,
questions being asked back at them, but I don't have any
specific instances of that. But as a general practice, we want
to put out more information; tell people more specifically why
they are being detained.
Mr. Neal. Is there any directive from your agency to the
inspectors that would suggest that they be evasive, for
example, when they are questioned by a passenger?
Mr. Kelly. No, not that I am aware of.
Mr. Neal. Not that you are aware of? OK, Thank you, Mr.
Chairman.
Chairman Houghton. Thank you, Mr. Neal.
Mr. McInnis. Oh, not here.
Oh, I am sorry, Mr. Weller.
Mr. Weller. Thank you, Mr. Chairman and Commissioner, and
good morning.
Mr. Kelly. Good morning, sir.
Mr. Weller. I appreciate your testimony. I know you take
your job very seriously, and I have enjoyed the opportunity to
work with your staff on some issues as we find ways for drug
interdiction. You are on the frontline of defense trying to
keep drugs out of our country, and I appreciate the serious
approach that you take with the job. I also want to thank you
and your staff for the partnership we have as we work to
provide Federal protections for Federal law enforcement canines
that play such an important role for your agency and others
from drug-sniffing and other areas, and I want to thank you for
that, and, hopefully, we will move that legislation later this
year.
I am trying to get a greater understanding of your
individual agents at our area airports, and, of course, I
represent the Chicago area, O'Hare has been one of the airports
that has been singled out. They take their job seriously, and,
of course, under their responsibilities, they are given a lot
of discretion and responsibility in identifying individuals
that they feel deserve greater scrutiny, and I am trying to get
a better understanding of the profile that your individual
agents are trained to look for. Can you just give us a detailed
description of the basic profile of a suspicious character that
agents are trained to identify and look for as they come
through the Customs areas at the airport?
Mr. Kelly. We don't use profiles. The courts have said that
Customs doesn't use profiles. A profile is something that, from
my understanding--and you are right, courts don't like
profiles--that is not directly related to the offense that is
being looked for; that it is more of a stereotype, if you will.
We use indicators that are something more specific, more aimed
at smuggling, for instance, and it is very difficult to draw a
picture of a smuggler, because--as I said in my testimony--
children, older people; we have had pregnant women; we have had
disabled people in wheelchairs; we have had drugs in the
wheelchairs. It is very, very difficult to give a snapshot as
to what a smuggler, someone bringing drugs in, looks like.
I am told that that wasn't the case 10 or 15 years ago. It
was much easier to stop people who may be smuggling drugs in or
on their person. The cartels have gotten much more
sophisticated. They have people who--for instance, one recent
internal carrier in Newark Airport postured himself as an
automobile manufacturer and had all papers from this particular
company. He was an internal carrier. So, it is very difficult
to do, and inspectors over time buildup certain expertise, but
our concern is that the success rate for inspectors is
decreasing, and we want to do a more effective job of
identifying people and then doing it with civility and
fairness. So, I can't give you a picture of what a smuggler
looks like; it runs the cross-section of society.
Mr. Weller. It is my understanding, though, that in Customs
that you have a passenger handbook that agents have, and it is
my understanding that there are 43 different indicators that
are given to your inspectors that suggest that they then ask
for more questions. What are some of those 43 indicators?
Mr. Kelly. Again, we are redoing the handbook, and those
indicators will be moved out into a lesson plan, but
essentially, as I mentioned before, someone who purchases a
ticket just before they get on a flight; purchasing a ticket
for cash; wearing, perhaps, bagging clothing on a warm day;
wearing long-sleeved shirts, sunglasses in some instances, but
any one indicator is generally enough to give us reasonable
suspicion.
Mr. Weller. Commissioner, I have been to Jamaica a few
times for vacation. I fly in and out of O'Hare every week, and
there has been a few times the last couple years where my
briefcase has been one of those that has been swabbed, and so I
know the inconvenience of that, but you accept it, because you
want airline travel to be safe, and your folks are doing their
jobs as well as others assigned for security. But is it that
your inspectors are given as an indicator which would trigger a
personal search? What is it that triggers the need to do a
personal search of a passenger?
Mr. Kelly. There is a continuum, a series of questions that
are asked that individuals give conflicting answers or
confusing answers or don't--for instance, this individual who
was stopped from Ethiopia said he was going to a location in
Atlanta; he had no ticket to Atlanta; had no address in
Atlanta. Those sorts of--and, again, it is difficult to
pinpoint, but it is a compilation of information indicators
that lead inspectors to go forward. And now we have our highest
ranking person at an airport facility make that decision to go
further with more intrusive search.
Mr. Weller. Thank you, Commissioner.
I see my time has expired. Thank you, Mr. Chairman.
Chairman Houghton. Thank you very much.
Mr. Portman.
Mr. Portman. Thank you, Mr. Chairman, and, Commissioner,
thank you for being here today and talking about some difficult
issues. Your agents who are out in the field and your
inspectors have a very difficult job, and they are doing a good
job in terms of curbing the drug flow into the country. I think
we need to do a better job on the demand side to help them so
that there is less of a magnet here in this country. But you
seized a record 1.35 million pounds of illegal drugs last year,
and a lot of that came in by airplane--looking at some of your
statistics--2\1/2\ tons of illegal drugs were seized from air
passengers last year, alone. And, importantly, to me, is the
amount of money you are seizing from people going back South,
and I think you seized, in two border stations, alone, along
the Mexican border since October, $1.7 million. That will begin
to hit the drug cartels where it hurts and to the extent you
can continually do that on the southbound track, I think that
is going to make a major impact too. So, I want to thank what
your people--you and your people for what you are doing to try
to keep drugs off our streets, out of our schools, our
neighborhoods, and, again, we need to do more all through the
system to stop the demand so that your people aren't put at
risk and so you don't have to do so much.
But, in the meantime, you are going to have to use some
kind of technique to get at this. You talk in your testimony
about the lengths to which people to go to hide these drugs and
how difficult it is to find these drugs. I don't think anyone
in your area in the Customs Service wants to abuse people's
civil rights; I certainly hope not. I hope nobody on this panel
would want to do that, but I think privacy issues are always
going to be there to the extent you have to take these kinds of
measures to find these drugs that are so cleverly concealed.
And I guess my question to you is, can't we come up with
more technology so that we have less intrusive methods to do
that? I think to say it is not going to be an issue is naive.
People's privacy rights are going to be at stake here, and you
talked a little in your testimony about the body scanners, and
although that is also an issue for some people, I imagine
because it is much less intrusive than a cavity search, a body
cavity search, or other strip searches, and so on, that that
would be a logical way to go.
What have you asked for in terms of your appropriations for
fiscal year 2000 for additional technology, and it is adequate
to be able to implement at the important airports, in
particular, this kind of technology?
Mr. Kelly. We have asked for $9 million, essentially, for
x-ray technology, but I think in this area we should be looking
at some research and development initiatives. Some of the
things we are looking at are latex breathalyzers, for instance,
the ability to detect an internal carrier, although this
particular carrier was using electrical tape, but we need to
look at the whole area of technology, and I think it is just a
matter of time when we will have it, but we don't have it now,
and that is why we are forced to be involved in this unpleasant
business.
Mr. Portman. Commissioner, is it a matter of time or is it
a matter of time and focus? In other words, is $9 million
adequate? We are all looking for ways to keep our funding level
under control this year with the cap and so on, but this is one
area where I think there is a need to step up the technology
and, in the end, have fewer drugs coming in; have less risk for
your agents, and have fewer privacy concerns out there. Is this
something where you think $9 million--I think you indicated in
your testimony that $9 million would be adequate to service
maybe 75 percent of the airports with the kinds of x-ray
technology you are looking for, but is that adequate?
Mr. Kelly. Well, of course, there is a negotiating process,
and that is how we arrived at the $9 million----
Mr. Portman. I am aware of that.
Mr. Kelly [continuing]. Through OMB.
Mr. Portman. What was your request to OMB?
Mr. Kelly. I don't remember specifically in the technology
area.
Mr. Portman. But it is fair to say it was in excess of $9
million.
Mr. Kelly. Yes, it is fair to say.
Mr. Portman. I guess it would be helpful to this
Subcommittee and Chairman Houghton and others, Mr. Lewis, who
are looking at these issues if you could give us--if it is not
on the record, off the record--what you think your needs are,
and maybe this is a more constructive way to approach some of
these problems is to try to get the technology out there so
that your people can have it, because it is a matter of time
but also a matter of focus and money and commitment to it.
One other quick question, if I have time, Mr. Chairman?
There was a Booze-Allen study done--let us see if I have this
question--Booze-Allen study done at your request that I read
about in one of the earlier questions and prepared a report for
you in February 1999. What did the firm recommend with regard
to conducting a survey of air passengers and Customs
inspectors, and what has been your response?
Mr. Kelly. The firm essentially recommended better
communication with the traveling public telling them what
Customs is all about; what the Customs mission; what can happen
to them in the search procedure. That is what we asked them to
pretty much focus on. They did a survey of people who had gone
through the secondary area but were not personally searched.
So, it was of value, and we have adopted much of those
recommendations to better communicate. We have signs in the
rear of this room that we have now at airports; we have exit
comment cards that you can comment on the conduct of the
Customs inspectors and the process. Essentially, the Booze-
Allen report was focused on communication and recommending that
we better communicate to the traveling public what we do.
Mr. Portman. And you have implemented most of those
recommendations?
Mr. Kelly. Yes, sir.
Mr. Portman. Thank you, Mr. Chairman. Thank you,
Commissioner.
Chairman Houghton. Yes, Mr. Lewis.
Mr. Lewis. Let me just ask Commissioner Kelly, in
responding to one of my colleagues, he suggested that one
reason for stopping someone or detaining someone may be that
the person is wearing sunglasses or they may be wearing baggy
clothes. But, you know, in America these days, many of our
young people, young men in particular--if you go into the City
of Atlanta or walk the streets of Washington or New York,
almost any major city in America or go into almost any major
high school, you will see young men wearing baggy clothes. So,
if we go around detaining people because of wearing baggy
clothes or maybe wearing sunglasses, I think we are going to be
in serious trouble in America.
Mr. Kelly. That would not be the only indicators. However,
I did mention in my opening comments that we have a task force
that we have brought together to look at these indicators to
see if they are relevant; to see--these indicators, most of
them, were developed several years ago.
Mr. Lewis. But I think many of these young people are
trying to make a statement--maybe it is style; maybe it is a
cultural statement.
Mr. Kelly. But it certainly wouldn't be the only reason nor
would we accept that as a reason for stopping someone and
engaging them in this process. But I think the point is that we
have to take a look at all of these indicators to see if they
are relevant to 1999 and the next century.
Mr. Lewis. Thank you, Mr. Chairman.
Chairman Houghton. All right. Mr. Commissioner, we are
going to let you go in just a second.
I just have an overall question. You know, in a democracy
we have this sense of freedom, and yet people take advantage of
our openness. If you looked--I mean, you have only been in this
job 9 months--if you look out, let us say, 5 or 10 years, are
we going to be able to do the job that is necessary in terms of
your standards, yet avoid the pitfalls which Mr. Lewis and
others have pointed out?
Mr. Kelly. I hope so, Mr. Chairman. I think we are putting
a lot of hopes on technology, both as far as the issue of
people coming into the country and cargo coming into the
country as far as drugs being transported, and we estimate that
there are at least 300 metric tons of drugs that come into the
United States every year. We examine between 2 and 3 percent of
all cargo that comes into the country. We have to rely on
better technology in the future as we see this explosion of
trade all around us. We need more effective systems to cope
with it.
So, I am hopeful--we have seen what has happened in the
last 10 to 15 years as far as technology development--I am
hopeful in the next 10 or 15 years that we will have the
technology to help us better protect our borders and also
protect the civil rights of everyone coming into our country.
Chairman Houghton. Well, technology is sort of a broad
word, and there is a lot of technology out there. Do you have
surveillance teams? Do you have somebody who is taking a look
at what other Customs Services are doing around the world? Do
you have people combing over what is being developed in Silicon
Valley or in Austin, Texas, or the Research Triangle? How do
you get at that technology?
Mr. Kelly. We work with the Department of Defense; we work
with other governmental agencies. We got a very generous
supplemental budget in October 1998 for flight technology along
the--mostly along the southern border, the border between
United States and Mexico, and we are in the process of
deploying that technology, and that won't be fully deployed
until at least 2002.
Technology is constantly developing. One of the problems
with technology, even as we are deploying it, is the through-
put rate. As far as vehicles are concerned, for instance, it
takes us maybe 20 minutes, 30 minutes to do a truck now, even
with the most modern technology, but we hope in the future that
it will be developed to the point where we can do it in a much
faster way or do it where the vehicle, itself, doesn't go
through the x-ray; that the x-ray goes over the vehicle.
So, we are looking at the entire area. As I said, we are
looking at things such as latex breathalyzer tests; we are
looking at any way that we can to do these less intrusive
searches, but it is an area--of course, now we are talking
about searches of persons, but it also concerns us as far as
cargo coming into the country. We will have by 2005, in
essence, doubled the amount of trade that is coming into the
country in 1999. So, we need resources, and that is why I say
technology, but it looks like we are not going to get a lot
more people, and we need people, though, to run the technology,
but I think the answer to this one lies in technological
development.
Chairman Houghton. Well, I don't know if the other members
of the panel feel this way, but I think it is your personal
responsibility to make sure there is no racial profiling going
on. It is our responsibility to work with you, and to make sure
you have the proper equipment. I hope you will tell us if we
need to do other things to help you in your overall task.
Are there any other questions? If not, I would like to
excuse the Commissioner. Commissioner Kelly, thank you so much
for your testimony.
Mr. Kelly. Thank you.
Chairman Houghton. Now, I would like to call the other
panel if they could come up here--Amanda Buritica, who was a
passenger at Port Chester, New York; Janneral Denson, a
passenger at Ft. Lauderdale, Florida; Mr. Ed Fox, who is an
attorney of Ed Fox & Associates in Chicago, Illinois; Sheri
Lynn Johnson, from the Cornell University School of Law in
Ithaca, New York; and, also Mr. Robert Tobias, president of the
National Treasury Employees Union.
Well, ladies and gentleman, thank you very much for being
with us today. Ms. Buritica, would you please begin the
testimony.
STATEMENT OF AMANDA BURITICA, PORT CHESTER, NEW YORK, PASSENGER
FROM HONG KONG TO SAN FRANCISCO
Ms. Buritica. Good morning.
Chairman Houghton. Good morning, and if you could pull that
microphone down so that we could hear you. Thank you very much.
Ms. Buritica. Thank you very much for inviting me here
today.
My name is Amanda Buritica, and I live in Port Chester, New
York. I have a part-time job as a crossing guard, and I had a
very, very bad experience when I went on a trip around the
world, and I came back and made the last stop in San Francisco,
and as I got down from the airplane and went to pick up my
luggage, one inspector asked me for my passport. I gave him my
passport; he looked up on the first page where my name is and
my place of birth. Then he pointed to another person in U.S.
Customs, and he said, ``Go to that person.''
I went to that person. That person also opened my passport
to the page where my name is and my place of birth, and she
says to me, ``Who are you traveling with?'' And I said,
``Nobody.'' Then she said, ``Where were you born? You were born
in Columbia?'' And I said, ``Yes.'' So, then she gave me back
my passport, and she pointed to another U.S. Customs, and said
``Go to that person.''
And I went to that person, and she asked me to open my
luggage, and she started taking out all my belongings, piece by
piece, out of the suitcase. When she got to the bottom of the
suitcase, she pulled up the lining of the suitcase, and she was
feeling the bottom of the suitcase everywhere and sniffing her
fingers, and the luggage was tore apart completely.
Then she asked me to follow her. Behind her was a door; she
opened the door, and she said, ``Follow me here.'' I followed
her into the room. She then said to me, ``I have to do a pat
search.'' I said, ``Why?'' And she said, ``I just have to do a
pat search.'' And I said, ``No, I don't need for you to do a
pat search on me.'' And then she said, ``If you have nothing to
hide, everything is going to be OK, and you are going to be on
your way.'' I know I didn't have anything to hide, so she did
the pat search.
Then she went out, and she came back, and she says, ``You
have to do a strip search.'' I said, ``No, no, no way, no. I
don't want you to do a strip search.'' And she said, ``Well, if
you have nothing to hide, everything is going to be OK, and you
are going to be on your way.''
Another inspector came in, and they both ordered me to take
my clothes off. I was so scared. I was so scared and so
embarrassed. It was the most humiliating, degrading thing that
I ever had to go through. They made me take off all my clothes,
and one of the inspectors said to me, ``Bend over.'' As I was
bent over, she then was kicking my legs saying, ``More, more,
more,'' and she kept kicking my legs, ``More, more, more''
until I was on four legs. She did a cavity search. It was
horrible; it was very, very humiliating. Then she told me to
face her. She told me to lift up my breasts; she looked. Then
she told me to lift up my hair; she looked; she inspected me
everywhere.
Then she went out, and she came back again in the room and
says to me, ``You have to follow me to a--we have to take you
to a clinic. It is in the airport, and we have to take x-rays
of you.'' I said, ``No, I don't need x-rays. I don't want to go
anywhere. I just want to go home.'' And she said, ``You are not
going anywhere. You have to go to the clinic to have the x-rays
taken.'' I said, ``No, I don't want to go; I don't want to
go.'' And she says, ``Well, then if you are not going with us
to the clinic, then we will put you in jail.'' I said, ``No, I
just want to go home.'' And she says, ``Well, if you have
nothing to hide, everything is going to be OK, and you are
going to be on your way.'' I had nothing to hide. I agreed to
follow her to the clinic to have the x-rays taken, and the x-
rays--the man who had the x-rays said that there were some
spots there. I said, ``It is the food, the lunch that I had on
the plane.''
So, I followed them again to the same little room from the
beginning and then a man came in, a very tall man came in with
cuffs and said they were going to handcuff me and take me to
the hospital. I said, ``No, I am not going to any hospital. I
am not sick. I want to go home.'' And he said, ``No, you have
to go with us to the hospital.'' I said I didn't want to go,
and he says, ``We will put you in jail, then.'' I didn't want
to go to jail. I have never done anything wrong in my life,
never. I was so scared; I was shaking; I was crying, and then,
finally, I agreed to allow them to take me to the hospital.
As I got to the hospital, they gave me a--a nurse came in
carrying this big jug of some clear liquid and she says to me,
``This is for you to drink it all.'' And I says, ``No, I don't
want to drink that. I am not thirsty. I don't want--what is
it?'' And then she said, ``It is something to make you go to
the bathroom.'' But I had already gone to the bathroom twice in
the hospital. And the inspector checked the bowel movement both
times and both times said ``Negative, negative.''
Then it was a horrible night. I spent the whole night in
the hospital and the whole day. I was there 25 hours in that
hospital with nurses and doctors. When I told the nurse that I
didn't want to drink the liquid, the nurse said, ``Well, if you
don't want to drink it, we are going to put tubes through your
nose, and you are going to have it anyway.''
And a doctor came, a man wearing a white coat came, and he
said he was going to put a needle in my arm, and I said, ``No,
I don't want any needles in my arm.'' He grabbed my arm and he
pulled it close to him, and I said, ``No, I don't want needles
in my arm.'' I pulled it away. Then, he grabbed my arm again,
and he--it was awful; it was awful. Whether I wanted it or not,
they wanted to do whatever they wanted to do to me.
So, finally, he was determined that he was going to do it
anyway, so he did it; he put the needle in my arm. I was so
sick--I got so sick through the whole night, they had to
transfer me to the intensive care unit. I was very dehydrated;
I got fever; I was very, very sick. They made me very sick.
I spent the whole night there. In the morning, a doctor
came in; he ordered x-rays, and those x-rays--nobody came to
tell me the results of those x-rays until about--I would say
about 1 p.m. I heard a doctor talking on the telephone saying,
``I have this Columbian-born woman here. I looked at him,
because I heard what he was saying, and he looked at me; he
turned around the other way so I could not hear what he was
saying, and then he said, ``The x-rays are clean.''
As soon as he said that, the inspectors who were with me
all the time since the night before, they ran out of the room
so fast, I never saw them again, and no one came to tell me
that they were talking about my x-rays, and they were clean.
About 5 p.m., a nurse came and told me that I should try and
get up and get dressed, because I had to go back to the
airport. Someone helped me put my clothes on.
I was very sick, very dizzy, and then two inspectors came
and took me back to the airport. At the airport, they told me
to gather all my belongings; they were there in the same place
where they were the night before, all messed up. I was so sick;
those people made me sick. I gathered all my belongings, and
then they said, ``OK, you can go now.'' I didn't know where to
go.
No one explained anything to me, and that is just a little
part of the whole story. It is a very long story, but I know my
time is very limited.
[The prepared statement follows:]
Statement of Amanda Buritica, Port Chester, New York, Passenger from
Hong Kong to San Francisco
Good Morning, Chairman Houghton, Ranking Member Coyne and
other Members of the Committee. Thank you for inviting me here
to testify before you today.
My name is Amanda Buritica and I live in Port Chester, New
York, where I work part time as a crossing guard. I am here
because of my experience with the U.S. Customs Service. Because
of this experience, I sued the Customs Service and won a civil
judgement of $450,000.
On September 22, 1994, I was traveling from Hong Kong to
San Francisco. When I arrived at the San Francisco airport, a
man from the U.S. Customs Service asked me for my passport,
took a look at it, and told me to go to another Customs
employee, a woman. She took my passport, opened it up, and
asked me who I was traveling with. I said, nobody.
She gave me back my passport and sent me to another Customs
employee, a woman seated at a table. This woman asked me to
open my luggage and I did. She then picked up everything in the
luggage, piece by piece, feeling them and smelling them. When
she got to the bottom, she ripped off the lining and again felt
and sniffed it. The luggage was ripped apart completely.
She then told me to follow her behind a little door, and
told me she had to pat search me. I asked her why. I asked her
what she was looking for. I didn't get an answer. I was in this
tiny little room and scared to death. I started shaking and
sweating. When I protested, she said ``If you have nothing to
hide, everything will be all right. You will be on your way.''
I had nothing to hide, so I let her do the search. She went
out again and then came back. She said she had to do a strip
search. I said, ``Oh, God, why are you doing this to me?'' I
got more scared. She again said ``If you have nothing to hide,
you will be on your way.''
She made me take off all my clothes. Then she told me to
bend down, and she kept kicking my legs, telling me ``more,
more.'' And as she said ``more, more,'' she would kick my legs,
until I was on all four. She told me to get up and lift up my
breasts. She told me to lift up my hair. She searched
everywhere.
She again went out and came back. She told me I had to go
to a clinic in the airport to have x-rays taken. When I
protested, she said, ``You have to have the x-rays.'' Again she
said, ``If you have nothing to hide, you will be on your way.''
I agreed to go to the clinic.
The man who read the x-rays said there were some black
spots in there and nothing else could be done at the clinic. I
had to be taken to a hospital. A big man came with handcuffs
and said he was going to handcuff me because they had to
transport me to a hospital. He said ``It is either go to the
hospital or go to jail.''
They took me to a hospital. When we arrived, a nurse gave
me a huge plastic jug with some clear liquid in it, and said
``this is for you to drink.'' I said ``no, I am not thirsty.''
She said I had to drink it. She said ``If you don't drink it,
we will put tubes in your nose and you will drink it anyway.''
It tasted awful.
I started going to the bathroom and having big stomach
cramps. I got so sick they had to transfer me to the intensive
care unit. I was so dehydrated they had to give me an IV. This
lasted the whole night. The Customs people were with me the
whole time, even when I went to the bathroom.
The next day, they took four more x-rays. At one o'clock in
the afternoon, I heard the doctor say ``the x-rays are clean.''
I heard the Customs inspectors leave, and I never saw them
again. About five o'clock, a nurse told me I had to try to get
up and get dressed because I was going back to the airport.
When I got back to the airport, they then told me I had to
sign some papers. My luggage was still there in a mess. I was
so sick, I could not lift the luggage. I signed the papers and
they told me I could go. Nobody ever apologized to me. I left.
For twenty-five hours, I could not talk to the outside
world. I could not make a phone call. I could not speak to an
attorney. I was held captive.
Mr. Chairman, Members of the Subcommittee, nobody should
have to go through what I went through. Thank you for the time
and the opportunity to testify.
Chairman Houghton. Thank you very much, and maybe we will
have some questions for you a little later.
Ms. Denson, would you like to testify?
STATEMENT OF JANNERAL DENSON, PALM BEACH COUNTY, FLORIDA,
PASSENGER FROM JAMAICA TO FORT LAUDERDALE
Ms. Denson. Good morning.
Chairman Houghton. Good morning.
Ms. Denson. My name is Janneral Denson. I am here on behalf
of myself and my son, Jordan, to tell you what happened to me
and my son in the hands of the U.S. Customs Service and the
agents at Jackson Memorial Hospital on February 14, 1997 to
February 16, 1997.
I am a U.S. citizen. I was born, raised, and live in Palm
Beach County, Florida. What I am here to tell you is not
reasonable.
On February 14, 1997, about 2 p.m., my flight from Jamaica
had arrived in Ft. Lauderdale. My flight to Miami that morning
had been canceled by the airline. We were attempting to get a
visa for my husband to come to the United States, and we had
been reviewing various immigration documents and notes. I had
made notes of information that we would need to know at our
meeting with Immigration. I had these documents with me when I
returned to the United States. At that time, I was
approximately 6\1/2\ months pregnant.
After getting off the plane at Ft. Lauderdale Airport, I
walked through the Customs area. The Customs agent stamped my
passport and let me pass. As I walking to the exit door,
another agent stopped me and asked to search my luggage. After
she searched my luggage and found nothing, she asked why was I
in Jamaica. I told her the details of my visit with my husband.
I also showed her immigration documents, marriage certificate,
notes, wedding pictures, my birth certificate, my husband's
birth certificate, and pictures of my two children, Darrick and
Breanna.
After showing her these documents, she tore a piece a paper
from my notepad and ordered me to write my full name, my
address, where I worked, the phone number of my work, and to
describe my husband. I did that and gave it to her, and she
left, leaving me with another agent.
After more than an hour, I told the agent that I was
hungry, and I hadn't eaten all day. It was now late afternoon,
and I was ignored. Time passed and I had to use the bathroom. I
was taken by two agents to the bathroom where they had me lean
against the wall, spread my legs so that they could search me.
After that, they let me go to the bathroom while they watched.
I had been wearing a pantyliner that day, because I had been
spotting. They ordered me to show them the pantyliner as well
as the tissue that I used to wipe myself after I urinated.
Up until that point, I had full cooperated with them in
every way, and then I asked to leave, but I was told I was
going to be taken to a hospital in another city, that city
being Miami. I was getting very scared for my children and my
family and myself, and I told them that I wasn't going
anywhere, and what was this all about? They ignored me, so I
took out a piece a paper, and I started writing down the badge
number of the agent. I also was writing down the way I was
being treated. All of my personal belongings were taken from me
at that time. I asked to call my mother. She was expecting me,
and my kids had to be picked up from the day care center. I was
getting really scared, and she refused to let me call.
The agent read me some legal rights from a piece of paper
and told me to sign it, and I refused. I asked to a call a
lawyer; the agent said, ``What for?'' I told I believed that I
was being arrested and that you are allowed a phone call. She
refused. They handcuffed me and put me in a van and drove me to
Miami.
When I got to the hospital, I was asked a lot of questions,
and my picture was taken. Later, I was taken to a room where
they had me change into a hospital gown. A doctor came in and
asked if she could examine me, and I asked her what type of
examination, and she told me a vaginal examination. And then
she asked me how far along was my pregnancy? I told her I was
almost 7 months pregnant. The doctor turned to the agent and
told her that I was too far along for an examination; that I
needed to be taken to the labor and delivery ward.
They handcuffed me again and took me there. After waiting
and waiting, they took my blood pressure and did some other
tests. Then they gave me a urine sample. After this, I was put
on a bed and handcuffed to a bedrail. The handcuffs were so
tight it hurt, and I told the agent, and she said, ``Oh, don't
worry about it.'' And I was scared. I didn't know what was
happening. I didn't know what was going to happen.
The first agent left and another agent came into the room,
and he loosened the handcuffs for me. Later, the first agent
and a doctor came back in the room, and we discussed my
pregnancy. At that time, the doctor had a portable sonogram
machine and brought it in because she wanted to check me
internally. She then discovered that I had a problem pregnancy,
and I don't know if you want me to go into the details of the
problem pregnancy, but the doctor put it in writing and told me
that I should give it to my doctor.
Based on her examination with the sonogram, she told the
agents that I had nothing inside of me but a child and that
there was no room for anything else. They then took me off the
bed and handcuffed my hands again. I reminded the first agent
that I didn't have anything in my luggage and that I didn't
have anything inside of me, and I asked if I could call home.
She refused.
I was then taken to some place called Ward D. While in the
elevator, another doctor told the agent that he didn't believe
I had anything inside of me but a baby. I was taken to a room
and again handcuffed to a bed.
That night, I asked for something to eat, and they gave me
orange juice. Having not eaten all day, I needed something to
eat. They put a frozen sandwich in front of me they had put
into a microwave to warm up. It was really like a bunch of
mess. It made me sick to look at it. I was told that I would
not get anything until the morning.
Then the doctor brought in a clear jug of something called
Go lyte, and I was ordered to drink it, and I asked, ``What
for?'' The first agent told me I had to pass three clear stools
before I could leave. I was scared to death for my child. I
told the agent, ``That is a laxative, and pregnant people
should not take a laxative.'' I refused to drink it at first.
They again handcuffed me to the bed. I laid there that night
crying for a long time, and then I asked if I could call my
mother and let her know what was going on. The agent said I
couldn't call anyone.
In the middle of the night, I had to go the bathroom. They
forced me to use the bedpan. I had a bowel movement, and they
examined it. After they examined it and found nothing, they
handed it to me and made me empty it and clean out the bedpan.
I was again handcuffed to the bed.
The next morning, they gave me a cold breakfast that I
could not eat, though I tried. I had some orange juice and
water. At that time, I heard the first agent outside my door
call me a ``thing.'' She said, ``This thing has been in here
since Friday, and she won't eat anything.''
That afternoon, the first agent was replaced by another
agent who told me the only way I was going to get out of there
was to drink the laxative, and I agreed. I didn't know what
else to do. He mixed it with juice and ice and told me that I
had to drink 4 cups. I started drinking it. There I was,
handcuffed to a bed. I was so scared, and I drank a laxative
that might hurt me and my child. I threw up. Members of this
panel, what was happening to me cannot be described in words,
and I was forced to drink it until I could hold it down.
By the next morning, I passed two clear stools. About 4
hours later, the first agent returned to take me back to Ft.
Lauderdale. They said they called my mother, but the truth is
they never called my mother. My mother had been calling
hospitals until she found me, and then the agent told her that
I would be at the Ft. Lauderdale Airport in a couple of hours.
I was taken to the Ft. Lauderdale Airport and nobody was there;
they just left me.
For the next 2 days, I had severe diarrhea and incredible
pain. After that, I began bleeding. I was taken to the
hospital. After an examination, I was sent home and told to
stay in bed. The bleeding never stopped; the pain never went
away. Eight days later, the bleeding increased, and I was
rushed to the hospital. At that time, doctors had to perform an
emergency cesarean. When my son, Jordan, was born, he only
weighed 3 pounds, 4 ounces. He was taken from me and placed in
a prenatal intensive care unit where he stayed there for over a
month. At this point, we don't know what permanent effects
premature birth will have on my son, and there is not a waking
hour that goes by that I don't worry about it.
The very fact that I am here speaking before you points out
the greatness of our country, but what I and many other
African-Americans and others have gone through points out a
great failure in our country. Conduct such as this is both
illegal and un-American, and, in the long run, can only serve
to drive a wedge between you, the government, and the citizens
of our country.
[The prepared statement follows:]
Statement of Janneral Denson, Palm Beach County, Florida, Passenger,
from Jamaica to Fort Lauderdale
Good Morning. My name is Janneral Denson. I am here today
on behalf of myself and my son, Jordan, to tell you what
happened to me and my son at the hands of the United States
Customs Service and their agents at Jackson Memorial Hospital
on February 14, 1997 to February 16, 1997.
I am a United States citizen. I was born, raised and live
in Palm Beach County, Florida.
On February 14, 1997, at about 2:00 in the afternoon my
flight from Jamaica had arrived in Fort Lauderdale. My
scheduled flight to Miami that morning had been canceled by the
airline. I had been in Jamaica for two days visiting with my
husband and his family. We were attempting to get a visa for my
husband to come to the United States and we had been reviewing
various immigration documents and notes. I had made notes of
information that we would need to know for our meeting with
Immigration. I had these documents with me when I returned to
the United States. At that time, I was approximately six and
one-half months pregnant.
After getting off the plane at the Fort Lauderdale Airport,
I walked through the Customs area. The first customs agent
stamped my passport and let me pass. As I was walking to the
exit door, another agent stopped me and asked to search my
luggage. After she searched my luggage and found nothing, she
asked why I was in Jamaica. I told her the details of the visit
with my husband. I also showed her the immigrations documents,
notes, wedding pictures, my birth certificate, my husband's
birth certificate, my social security card, and pictures of my
two children, Darrick and Breanna.
After showing her these documents, she tore a piece of
paper from my notepad and ordered me to write my full name, my
address, where I worked, the phone number of my work, and to
describe my husband. I did that, gave it to her and she left,
leaving another agent with me.
After more than an hour, I told the agent that I was
hungry, that I hadn't eaten all day. It was now late afternoon.
I was ignored. Time passed and I had to go to the bathroom. I
was taken by two agents to the bathroom where they had me lean
against the wall, spread my legs, so that they could search me.
After that, they let me go to the bathroom while they
watched. I had been wearing a panty liner that day because I
had been spotting. They ordered me to show them the panty
liner, as well as the tissue that I used to wipe myself after I
urinated.
Up until that point I had fully cooperated with them in
every way. I then asked to leave but was told that I was going
to be taken to a hospital in another city, that City being
Miami. I was getting very scared for my children, my family and
myself, and told them that I wasn't going anywhere and what was
this all about. They ignored me so I took out a piece of paper
and started writing down the badge number of each agent. I was
also going to describe the way I was being treated. All of my
personal belongings were then taken away from me. I asked to
call my Mother. She was expecting me and my kids had to be
picked up from the day care center. I was getting really
scared. She refused to let me call.
The agent then read me some legal rights from a piece of
paper and told me to sign it. I refused. I asked to call a
lawyer. The agent said what for? I believed I was being
arrested and I told her so and your supposed to be allowed a
phone call. She refused. They handcuffed me, put me in a van
and drove me to Miami.
When we got to the hospital, I was asked lots of questions
and my picture was taken.
Later I was taken to a room where they had me change into a
hospital gown. A doctor came in and asked if she could examine
me. I asked her what kind of examination and she said a vaginal
examination. She asked me how far along was my pregnancy. I
told her almost seven months, and the doctor turned to the
agent and said that I was too far along for such an examination
and that I needed to be taken to the Labor/Delivery ward. They
handcuffed me again and took me to that ward. After waiting and
waiting, they took my blood pressure, did some other tests, and
had me give them a urine sample. After this, I was put on a bed
and handcuffed to a bed rail. The handcuff was so tight it
hurt. I told the agent. She said don't worry about it. I was
scared. I didn't know what was happening. I didn't know what
was going to happen. The first agent left and another agent
came into the room. He loosened the handcuff.
Later, the first agent and the doctor came back into the
room and we discussed my pregnancy. At that time, the doctor
had a portable sonogram machine brought in because she wanted
to check me internally. She then discovered that I had a
problem pregnancy. I don't know if you want the details of the
problem pregnancy, but the doctor put it in writing and told me
to give it to my doctor. Based on her examination with the
sonogram, she told the agents that I had nothing inside of me
but my child and that there wasn't room for anything else. They
then took me off the bed and handcuffed my hands again. I
reminded the first agent that I didn't have anything in my
luggage, and that I didn't have anything inside of me and I
asked if I could go home.
She refused. I was then taken to someplace called ward D.
While in the elevator, another doctor told the agent that he
didn't believe that I had anything inside me other than my
baby. I was taken to a room and again handcuffed to a bed.
That night I asked for something to eat. They gave me some
orange juice. Having not eaten all day, I needed something to
eat. They put a frozen sandwich in a microwave and handed me
the soggy mess. It made me sick to look at it. I was told that
I would not get anything until the morning. The doctor then
brought in a clear jug of something called Go lyte and I was
ordered to drink it. I asked what for? The first agent told me
that I had to pass three clear stools before I could leave.
I was scared to death for my child. I told the agent,
that's a laxative and pregnant people should not take a
laxative. I refused to drink it. They again handcuffed me to
the bed, I laid there that night crying for a long time. I then
asked if I could call my mother and let her know what was going
on. The agent said I couldn't call anyone. In the middle of the
night, I had to go to the bathroom. They forced me to use the
bedpan. I had a bowel movement and they examined it. After they
examined it and found nothing, they handed it to me and made me
empty and clean out the bedpan. I was again handcuffed to the
bed.
The next morning they gave me a cold breakfast that I could
not eat, though I tried. I had some orange juice and water. At
that time, I heard the first agent outside my door call me a
``thing.'' She said ``that thing's been here since Friday and
she won't eat''.
That afternoon, the first agent was replaced by another
agent. He told me the only way I was going to get out of here
was to drink the laxative. I agreed, I didn't know what else to
do. He mixed it with juice and ice and told me I had to drink
four cups. I started drinking it. There I was, one hand
handcuffed to a bed, so scared that I drank a laxative that
might hurt me and my child. I threw up. Members of this panel,
what was happening to me cannot be described in words and I was
forced to drink four cups until I could hold it down.
By the next morning, I passed two clear stools. About four
hours later, the first agent returned to take me back to Fort
Lauderdale. They say they called my mother. The truth is that
they never called my mother. My mother had been calling
hospitals until she found me and then an agent told her I would
be at the Fort Lauderdale airport in a couple of hours.
I was taken to the Fort Lauderdale airport. Nobody was
there. They just left me.
For the next two days, I had severe diarrhea and incredible
pain. After that, I began bleeding. I was taken to the
hospital. After an examination, I was sent home and told to
stay in bed. The bleeding never stopped. The pain never went
away. Eight days later, the bleeding increased and I was rushed
to the hospital. At that time, the doctors had to perform an
emergency cesarean. when my son, Jordan, was born, he weighed
three lbs., four ounces. He was taken from me and placed in the
prenatal intensive care unit where he stayed for over a month.
At this point, we do not know what permanent effects the
premature birth will have on my son. There is not a waking hour
that goes by that I don't worry about it.
The very fact that I am here, speaking before you, points
to the greatness of our country. But what I, and many other
African-Americans, have gone through, points to a great failure
in our country. Conduct such as this is both illegal and Un-
American, and, in the long run, can only serve to drive a wedge
between you, the government, and the citizens of our country.
Chairman Houghton. Thank you very much, Ms. Denson.
Mr. Fox, would you like to testify?
STATEMENT OF EDWARD M. FOX, ATTORNEY, ED FOX & ASSOCIATES,
CHICAGO, ILLINOIS
Mr. Fox. Thank you. Good morning. I am an attorney
presently representing about 90 African-American women who have
been subjected to abusive pat downs, strip searches, visual
cavity searches, and, in some cases, physical cavity searches
and x-rays that have been done or caused by employees of the
U.S. Customs Service.
I have talked to many other women whose cases I have not
taken for various reasons, such as because the case is too old
or a case involving an airport other than O'Hare Airport in
Chicago.
In none of these instances were drugs found. In all the
instances, the reasons for the searches were minimal or
pretextual or otherwise were simply non-existent. In all the
cases, the degradation of the women was at maximum.
The origins of the case I am doing sheds light on the
clearly discriminatory nature of the searches. In August 1997,
Sharon Anderson was searched upon coming home from a vacation
in Jamaica. She was and is an African-American schoolteacher
with the Chicago Board of Education. She is middle-aged. She
subsequently came to talk about what she had endured. I filed a
case on her behalf in October 1997.
The case I filed at that time did not contain allegations
of racial discrimination nor did it contain many of the
allegations that eventually found their way into subsequent
complaints. I did not have information at that time showing a
racial or gender bias, and I certainly had no idea of the
enormity of the problem. It was simply an unlawful search case
at that time.
Subsequently, in about late March 1998, Ms. Anderson called
me upon seeing a news report of another woman, Denise Pullian.
Ms. Pullian described a remarkably similar scenario as that
undergone and described by Ms. Anderson.
Thereafter, my office called the news station, as did my
client, to see what information they had that might be useful.
Thereafter, Ms. Anderson told others about what she went
through. I and the news station started receiving many
telephone calls from only African-American women who also
recounted startlingly similar stories. Two of the women were
travel agents who had known of tens of such cases. Thus, the
word of mouth coupled with additional news stories on the same
subject matter served to embolden many women who before had
felt too alone, scared, and isolated to come forward.
It quickly became apparent that there was a racial
component to the searches--only African-American women were
calling. Additionally, many of them recounted stories of seeing
only other African-American women in the secondary area where
further questioning and searching by Customs are commenced.
Resulting from this and further news report, I have now
received telephone calls or visits from women in many different
States, including Illinois, Florida, Texas, Pennsylvania,
Maryland, California, New Jersey, Ohio, Michigan, New York,
Virginia, Georgia, and also Puerto Rico. Most of these women
have come through an international airport terminal and all
have described similar ordeals. The number of women I spoke to
greatly exceeds 100. They are predominantly African-American.
Because you have just now heard from women whom have
endured this, I am not going to go into detail regarding what
they go through. However, there is two outrageous facets to the
examination which I believe must be examined. First, and the
most appalling, is that the women are literally held
incommunicado during the entire procedure. This means not only
can they not contact an attorney or other person by telephone,
they are not even permitted to tell friends that are picking
them at the airport why they are running late. This very
Kafkaesque scenario lasts for as long as Customs desires it to
last. Thus, if they take a woman to the hospital in handcuffs
to be further x-rayed and examined, as sometimes occurs, no
telephone call is still permitted despite the great length of
time that will lapse. The fear that these women go through
during these ordeals is very real.
The second fact is that, often, a young, low-ranking
government official who does not even obtain a supervisor's
approval is conducting these searches and making critical
determinations and decisions regarding how these women are to
be treated.
There are many reasons motivating the discrimination. One
of the overriding themes of the searches, from what I have seen
in the Chicago area, is that Customs simply does not believe
that Black women can afford to travel unless they are drug
couriers. It is often noted by Customs in this incident logs--
and I have seen many, many incident logs now that Customs has
produced in the context of these women--that a search is
recommended merely because this African-American woman has
traveled frequently without any evidence of wrongdoing.
For example, in the responsive letter to one woman, Customs
wrote, justifying a strip search, that--and I am quoting--``It
was quickly determined that this was your third trip out of the
United States in the last 3 months.'' That woman was a
businesswoman. It is disturbing and absolutely true that often
Customs recommends searches for these African-American women
based solely on the amount of travel they do. This is so,
because the logs indicate a recommendation to search before the
woman will have even returned from her trip and thus without
knowing the reason for travel, her occupation, or, indeed,
anything about the woman, and I have some examples from Customs
logs.
One remarks, dated October 28, 1995--this is from a log of
an individual woman--she was a passenger analysis unit lookout,
and this is what it--
Passenger has three trips within the past 8 months; no
travel prior to that time. Passenger has air only passage to
Jamaica. Passenger was a no show for her return flight on
October 28, 1995. A secondary exam is recommended.
Another example,
Chicago passenger alert unit lookout; code appropriately
and refer to U.S. Customs Service secondary, 100 percent,
please; U.S. Customs Service. Very frequent travel to Montego
Bay, Jamaica. Claims to be a travel agent/antique dealer, but
she has no IATA. Please report name and exact address of
antique shop.
In fact, one woman, Patricia Appleton--and she was the
woman about who I just quoted--was searched so frequently that
a Customs inspector wrote in the log after one such strip
search as follows, ``Please stop the madness.'' The madness,
however, did not stop there. Ms. Appleton, a travel agent, has
continued to be searched time after time after time.
Finally, and very briefly, Customs' own statistics reveal a
highly disproportionate amount of African-American women being
searched at O'Hare Airport. In 1997, Customs' own statistics
show that of all strip searches undertaken broken down by race
and gender, Black women were searched 46 percent of these strip
searches. By way of comparison, white females were searched
only 23 percent of the time, and white males were searched only
11 percent of the time. When this is coupled with the fact that
the percent of negative searches of Black women was far greater
than any other group--much more than 80 percent--and the fact
that Black women are a much smaller percent of the traveling
population than whites, it is evident that racial profiling and
thus discrimination occurs regularly and frequently.
And one additional thing regarding these statistics that
you have seen and that I have seen. I would estimate based on
the large amount of clients that I have and the many incident
logs that I have that probably two to three times more Black
women are searched than what Customs admits to.
In conclusion, there is a Supreme Court case that dealt
peripherally with the issue here. It is United States v.
Montoya De Hernandez. In that case, the issue was the
reasonableness of a lengthy detention--the Court expressly did
not deal with personal searches--and they were to obtain a
monitored bowel movement when the officers had only
``reasonable suspicion'' and not probable cause or a warrant
for a search. That search was upheld. However, the dissent in
that case was prophetic in noting the problems that will arise
as a result. Justice Brennan made the following comment--
I do not imagine that decent and law-abiding international
travelers have yet reached the point where they expect to be
thrown into locked rooms and ordered to excrete into
wastebaskets; held incommunicado until they cooperate, or led
away in handcuffs to the nearest hospital for exposure to
various medical procedures--all on nothing more than reasonable
suspicions of low-ranking enforcement agents.
The above described scenario might have seemed hysterical
or overstated when it was written, but it has come to pass with
an alarming frequency. One of the most readily and easy ways to
correct these problems is using a procedure and dealing with
the fact that these women are held incommunicado. A
magistrate's authorization should be and, in fact, is legally
required before such searches take place but none ever occurs.
I believe that this would go a long way toward solving the
problem.
Thank you.
[The prepared statement follows:]
Statement of Edward M. Fox, Esq., Ed Fox & Associates, Chicago,
Illinois
I. Introduction
I am an attorney presently representing close to 90
African-American women who have been subjected to pat downs,
strip searches, visual cavity searches, and in some cases
physical cavity searches and x-rays by employees of the United
States Customs Service. I have talked to many other women whose
cases I have not taken for various reasons, such as because the
case is too old, or a case involving an airport other than
O'Hare airport in Chicago. In none of theses instances were
drugs found. In all the instances the reasons for the searches
were minimal/pretextual, or otherwise were simply non-existent.
In all the cases the degradation of the women was at a maximum.
In this written statement there are 3 issues that I intend
to discuss. They include how a large case consisting of
numerous African American women was discovered and commenced;
(1) a generally described ordeal of the strip search process;
(2) Customs purported justifications for undertaking their very
intrusive searches; and (3) the problems with the activities of
Customs (including some statistical data).
A. The Origins Of This Case
In August of 1997, Sharon Anderson was searched upon coming
home from a vacation in Jamaica. She was and is a schoolteacher
with the Chicago Board of Education. She is middle aged. She
subsequently came to me about what she had endured. I filed a
case on her behalf in October of 1997.
The case I filed at that time did not contain allegations
of racial discrimination, nor did it contain many of the
allegations that eventually found their way into subsequent
complaints. I did not have information at that time showing a
racial or gender bias, and I certainly had no idea of the
enormity of the problem. It was simply an unlawful search case.
Subsequently, in about late March of 1998, Ms. Anderson had
called me upon seeing a news report of another woman, Denise
Pullian. Ms. Pullian described a remarkably similar scenario as
that described by Ms. Anderson. (See below.)
Thereafter, my office called the news station, as did my
client to see what information they had that might be useful.
Thereafter, Ms. Anderson told others about what she went
through. I and apparently the news station started receiving
many telephone calls from only African-American women who also
recounted startlingly similar stories. Two of the women were
travel agents who had known of tens of such cases. Thus, the
word of mouth coupled with additional news stories on the same
subject matter served to embolden many women who before had
felt too alone, scared and isolated to come forward.
It quickly became apparent that there was a racial
component to the searches. Only African-American women were
calling. Additionally, many of them recounted stories of seeing
only other African-American women in the ``secondary'' area
where further questioning and searching are commenced.
Resulting from this and further news reports, I have now
received telephone calls or visits from women in many different
states, including Illinois, Florida, Texas, Pennsylvania,
Maryland, California, New Jersey, Ohio, Michigan, New York,
Virginia, Georgia, and Puerto Rico. Most of these women have
come through an international airport terminal, and all have
described similar ordeals. The number of women I spoke to about
this exceed 100. They are predominately African-American.
B. The Scenario To Which The Women Are Subjected
As noted above, the typical search that these women have
been made to endure is remarkably similar. Generally, they are
questioned by a ``rover'' who is a Customs inspector who stands
near the luggage area. The questioning has the feel of an
inspector who is incredulous that the particular woman has the
financial means to travel. The answers are generally irrelevant
to the decision to further search.
From the questioning stage, the women are made to go to a
secondary area where their baggage is searched and further
questioning is done. At this stage, often, gift bottles of just
bought bottles of wine are opened and therefore the gift is
destroyed. Additionally, it is rare that anything suspicious is
found in the luggage. That is, there is no drug or drug
paraphernalia found, no lubricants, large amounts of cash or
drugs that might be used to suppress bowel movements are found.
Notwithstanding this, the women are then taken to a small,
windowless room that contains only a metal bench and sometimes
a toilet that does not flush. In this room, Customs conducts
pat down searches, that often are followed by strip searches
and then visual body cavity searches.
Pat down searches are typically conducted in an abusive
manner. When being ``patted down'' the women are told to spread
their hands, placing them on a wall over the metal bench. They
are further told to spread their legs. If they are not
perceived to have spread their legs wide enough, they are
yelled at, and sometimes have their legs kicked or pushed
farther apart. The ``pat down'' consists of Customs inspectors
pushing their fingers through the clothing or palpating the
clothing over the skin hard, sometimes causing pain. This is
done all over the body, including the breasts, and groin area.
This is done regardless of whether the woman is wearing skin-
tight clothing and the absence of things under the clothes is
apparent.
Generally, the Customs inspectors ask the women at this
stage of the search if they are menstruating. The women are
then subjected to strip and visual cavity searches whether they
are menstruating or not. In no case, during the pat down search
was anything ever found which could then be used to justify a
more intrusive search.
The strip search then proceeds. In doing a strip search,
the women have been subjected to everything from having hands
inserted up under their clothes, to being asked to taking off
all their clothes and underwear. Some of the women are made to
remain naked in the room for a substantial length of time.
Most strip-searched women are subjected to a visual body
cavity search. In such a search, the women are asked to face
the wall, bend over and they are then told either to ``grab
your ankles and cough'' and/or ``to spread your cheeks.'' Then
the inspectors examine their vaginas and anuses. In some cases,
the women were physically touched during the strip search and
body cavity search. In some cases, fingers were inserted into
the body cavity of a woman. It is not infrequent that a woman
will be asked to retrieve her bloody tampon from her vagina to
be inspected.
Additional outrageous facets to these examinations are two-
fold. First, and most appalling, the women are literally held
incommunicado during the entire procedure. This means not only
can they not contact an attorney or other person by telephone,
they are not permitted to tell friends that are picking them up
at the airport why they are running late. This very Kafkaesque
scenario lasts for as long as Customs desires. Thus, if they
take a woman to the hospital in handcuffs to be further
x-rayed and examined, as sometimes occurs, no telephone call is
still permitted--despite the great length of time that will
lapse. The fear that these women thus go through during these
ordeals is very real. Secondly, a young low-ranking government
official who often does not even obtain a supervisor's approval
is conducting these searches.
C. Customs Reasoning For Doing the Searches
There is no dispute by Customs officials that they must
have ``reasonable suspicion'' to undertake the searches
described above. The reasons they give, however, are stunningly
thin and often pretextual.
A good example of Customs officials' ``suspicion'' is found
in the case of Denise Pullian. She was the first to be profiled
on the news. In a letter of complaint that she wrote to
Customs, Ms. Pullian described in vivid detail being made to
undergo a rude interrogation, followed by her luggage being
examined, followed by an abusive pat down search, followed by a
strip search, and followed by being made to pull her bloody
tampon from her vagina.
In a responsive letter, the Customs Service indicated that
the only reason for the search were some allegedly evasive
answers to questions regarding her reasons for travel.
In fact, nothing was found during any part of the search
that should have given rise to further searching. Customs
acknowledged that there were no drugs, paraphernalia, dog
alert, unusual amounts of currency, a lubricant or anything
else of interest found before subjecting Ms. Pullian to her
ordeal. In their responsive letter to Ms. Pullian, Customs
indicated in its responsive letter that it was most concerned
with the fact that Ms. Pullian said she was traveling on
business, and that they undertook the search because they
questioned whether her ``business trip was legitimate.'' In
doing so, Customs indicated that Ms. Pullian ``volunteered no
corroborating documentation supporting [her] reason for
travel.''
In fact, Ms. Pullian responded to all the questions
regarding her business (she designs Youth At-Risk programs),
and had various business documents in her luggage, which was
clearly seen. Interestingly, as noted by Customs in its letter,
Ms. Pullian suggested and accused the investigators during the
search of doing this because she was black.
This accusation has merit as seen by Customs own documents.
One of the overriding themes of the searches is that,
apparently, Customs does not believe that black women can
afford to travel--unless they are drug couriers.
It is often noted by Customs in its incident logs that a
search is recommended merely because the person has traveled
frequently--without any evidence of wrongdoing. For example, in
the responsive letter to Ms. Pullian, Customs wrote that: ``it
was quickly determined that this was your third trip out of the
United States in the last three months.'' The implication is
clear: that African-American women should not be able to afford
to travel often.
It is disturbing and absolutely true that often, Customs
recommends searches for these African-American women based
solely on the amount of travel they do. This is so because the
logs indicate a recommendation to search before the particular
woman will have returned from her trip, and thus, without
knowing the reason for travel, her occupation, or indeed,
anything about the woman. Note the following examples taken
from Customs' logs:
1. REMARKS--Date 020298
CHICAGO PAU [Passenger alert unit] LOOKOUT. INS: CODE TO
REFER TO USCS. FREQ TRVLR FROM JM THRU MIA: 6/97, 8/97, 11/97.
SUGGEST PROGRESSIVE NARC/$$$ EXAM. PLS SHOW OCCUPATION, REASON
FOR TRVL, & OTHER PERTINENT IINFO IN REMARKS. THANKS.
2. REMARKS--DATE 102895
ORD-PAU LOOKOUT. PAX HAS 3 TRIPS WITHIN THE PAST 8 MONTHS. NO
TRAVEL PRIOR TO THAT TIME. PAX HAS AIR ONLY PASSAGE TO JAMAICA.
PAX WAS A NO SHOW FOR RETURN FLIGHT ON 102895. A SECONDARY EXAM
IS RECOMMENDED.
3. REMARKS--DATE 102797
CHICAGO PAU L.O. CODE APPROPRIATELY AND REFER TO USCS
SECONDARY 100% EXAM PLS. USCS: VERY FREQU TRAV TO MBJ; CLAIMS
TO BE A TRVL AGNT/ANTIQ DEALER, BUT SHE HAS NO IATA# (SEE 6/
4IOIL); PLS REPORT NAME & EXACT ADRESS OF ``ANTIQUE SHOP''.
In fact, one woman, Patricia Appleton was searched so
frequently that a Customs inspector wrote in the log, after one
such strip search, as follows: ``PLS. STOP THE MADNESS.'' The
madness did not, however, stop there. Ms. Appleton, a travel
agent, has continued to be searched.
Finally, and very briefly, Customs' own statistics reveal a
highly disproportionate amount of African-American women being
searched at O'Hare airport. In 1997, Customs' statistics showed
that of all strip searches undertaken, broken down by race and
gender, black women were searched 46 percent of the time. By
way of comparison, white females were searched 23 percent of
the time and white males were searched 11 percent of the time.
When this is coupled with the fact that the percent of negative
searches of black women was far greater than any other group
(more than 80 percent) and the fact that black women are a much
smaller percent of the traveling population than whites, it is
evident that racial profiling, and thus, discrimination occurs
regularly and frequently.
II. Conclusion
There is a Supreme Court case that dealt peripherally with
the issue at hand here. United States v. Montoya De Hernandez,
473 U.S. 531 (1985). In that case, the issue was the
reasonableness of a lengthy detention (the Court expressly did
not deal with personal searches) to obtain a monitored bowel
movement when the officers had only ``reasonable suspicion''
and not probable cause or a warrant for a search. That search
was upheld. However, the dissent in that case was prophetic in
noting the problems that will arise as a result. Justice
Brennan made the following comment:
I do not imagine that decent and law-abiding international
travelers have yet reached the point where they `expect' to be
thrown into locked rooms and ordered to excrete into
wastebaskets, held incommunicado until they cooperate, or led
away in handcuffs to the nearest hospital for exposure to
various medical procedures--all on nothing more than the
`reasonable' suspicions of low-ranking enforcement agents.
The above describe scenario might have seemed hysterical or
overstated when written--but it has come to pass with an
alarming frequency.
One of the most readily corrected problems with the
procedure concerns the fact that these women are held
incommunicado. A magistrate's authorization should be, and in
fact, is legally required before such searches take place, but
none ever occurs. Thus, in the same Supreme Court opinion
referenced above, Justice Brennan indicated as follows:
Accordingly, in this country at least, the importance of
informed, detached and deliberate [judicial] determinations of
the issue whether or not to invade another's body in search of
evidence of guilt is indisputable and great.
Respectfully submitted,
Edward M. Fox
Chairman Houghton. Thank you very much.
Ms. Johnson.
STATEMENT OF SHERI LYNN JOHNSON, PROFESSOR OF LAW, CORNELL
UNIVERSITY, ITHACA, NEW YORK, AND CO-DIRECTOR, CORNELL DEATH
PENALTY PROJECT
Ms. Johnson. Good morning. I am a professor at Cornell Law
School with expertise in racial profiling. Because racial
profiling occurs in other settings and because deterring racial
profiling is as important as unearthing it, the racial
profiling practices of other law enforcement agencies are
relevant as are the underlying dynamics that support racial
profiling.
The individual experiences recounted this morning are
virtually impossible to explain on any basis other than race.
Moreover, the statistics released by Customs, itself, provides
strong evidence that these experiences are not idiosyncratic
but are part of a patter. Nevertheless, Commissioner Kelly has
repeatedly stated that Customs does not have a policy that
targets racial groups. It is clear from the experience of other
law enforcement agencies, however, that racial profiling
frequently occurs in the absence of official permission.
Today, the most powerful cause of racial profiling is not
policy but racial bias. Too often when we think of racial bias
we think of conscious animosity toward persons of another race.
While such animosity certainly exists, racial stereotyping,
sometimes even unconscious stereotyping, is far more prevalent.
It is no accident that the racial groups that Customs
disproportionately subjects to searches are Black and Latino;
both are stereotypically associated with criminal propensity in
our culture.
When searches result from such stereotyping, at least three
self-perpetuating mechanisms are generated. First, when drugs
are discovered, biases are reinforced. As psychologists have
observed, stereotype-consistent information is remembered far
more readily than is information inconsistent with the
stereotype; that is, failed searches.
Second, as agents treat travelers in extremely offensive
ways and then discovered them to be innocent of all wrongdoing,
those agents are likely to dehumanize such travelers in order
to rationalize their own actions. If agents were to see these
Black and Latino women as basically like themselves or their
wives or their daughters, it would be hard to justify the
humiliation they had inflicted. So, the agents focus on the
women's race in order to create psychological distance, thereby
simultaneously increasing the racial bias that led to the
initial search decisions. Looked at from this perspective, the
agents' incredibly callous response to these women suffering
and to their complaints are predictable. The callousness flows
from, justifies, and then perpetuates racial stereotyping.
Third, racial stereotyping is perpetuated by modeling. As
new agents observe the practices of more senior employees, they
learn bias on the job along with necessary skills. Although the
racial bias and the mechanisms that reinforce it are the most
important sources of racial profiling, in the Customs setting,
there are at least two other factors likely to bear some causal
responsibility. First is the issue of relative costs. If agents
perceive that racial minorities are less likely to lodge
complaints, it may seem less costly in the political sense to
select minorities for enhanced scrutiny rather to engage in
racially-blind screening of travelers. This is something we can
learn from the New Jersey Turnpike litigation where police
officers have now admitted that they selected African-American
motorists for traffic stops in part because they wished to
decrease the number of complaints. One of the purposes of this
hearing, of course, is to increase the perceived costs of
searching racial minorities to make clear that outrages, such
as those described today, are not made more acceptable by
virtue of the victim's race and, indeed, that targeting by race
renders the intrusions less rather than more tolerable.
Finally, racial profiling occurs more often because there
is no sanction against it. In the Customs context, internal
rules do not appear to prohibit consideration of racial
factors. Moreover, the
Supreme Court has been extraordinarily loathe to interfere with
border searches. Not only is the standard for requisite
suspicion needed to justify body searches much lower at the
border, but the Supreme Court has refused to prohibit the use
of ethnic criteria by the INS, thus creating at least a
constitutional voice if not lending tacit approval to the use
of racial criteria.
With these powerful psychological and institutional forces
supporting discrimination, it is insufficient for the
Commissioner to
declare that Customs has no policy of targeting minorities.
Eradication of racial profiling requires explicit prohibitions,
new training, a better incentive system, and very careful
external monitoring.
Again, observations of racial profiling in other law
enforcement agencies are instructive. When New Jersey officers
were ordered to keep records to ascertain the extent of race-
based detention, at least some of the officers falsified racial
information in order to conceal their continuing
discrimination. Similarly, if one examines either the INS
motorist stop case or the DEA airport stop cases, it is clear
that both INS and DEA have used ludicrous pretext to hide heavy
reliance on race.
As with all entrenched practices, resistance to change must
be expected. Good faith requires, first, candid acknowledgment
of past wrongs and then specific plans for reform. In their
absence, corrective legislative action is necessary.
[The prepared statement follows:]
Statement of Sheri Lynn Johnson, Professor of Law, Cornell University,
Ithaca, New York, and Co-Director, Cornell Death Penalty Project
Good morning. I am a Professor of Law at Cornell
University, and Co-Director of the Cornell Death Penalty
Project. I am here today not as an expert on Customs, but as an
expert on racial issues in the criminal justice system, which I
frequently litigate in capital cases, and concerning which I
have published numerous law review articles. More particularly,
I have expertise in racial profiling, first publishing an
article on the improper uses of race in search and seizure
decisions sixteen years ago in the Yale Law Journal. Because
racial profiling is a phenomenon that extends beyond the agency
here under review, and because I understand that this
subcommittee is interested in deterring racial profiling as
well as unearthing it, I believe that the practice of racial
profiling by other law enforcement agencies is relevant, as are
the underlying dynamics that support racial profiling.
The individual experiences recounted this morning are
virtually impossible to explain on any basis other than race.
Moreover, the statistics released by Customs provide strong
evidence that these experiences are not idiosyncratic: Last
year, Black and Latino travelers experienced 43 percent of the
body searches conducted by Customs, and if we focus on the more
intrusive strip searches, it appears that Black women travelers
face approximately eight times the risk of a strip search by
Customs agents than white males do. Commissioner Kelly has
repeatedly stated that Customs does not have a policy that
targets racial groups. Understanding the informal causes of
racial profiling, however, can reconcile the Commissioner's
denials of any formal targeting policy with the reality of race
discrimination.
It is clear from the experience of other law enforcement
agencies that racial profiling frequently occurs in the absence
of official permission. Probably the most powerful cause of
racial profiling is racial bias. Too often when we think of
racial bias, we think of conscious animosity towards persons of
another race. While such animosity certainly exists, and may
influence some Customs officials, racial stereotyping--
sometimes even unconscious stereotyping--is far more prevalent.
It is not an accident that the racial groups that are
disproportionately targeted for searches are Black and Latino;
in our culture, both are stereotypically associated with
criminal propensity.
When searches result from such stereotyping, at least three
self-perpetuating mechanisms are generated. First, when drugs
are discovered, biases are reinforced; as psychologists have
observed, stereotype-consistent information is more readily
remembered than is information inconsistent with the
stereotype, so failed searches are unlikely to cause the agent
to question the stereotype. Second, as agents treat travelers
in the extremely offensive ways described here today, and then
subsequently discover them to be innocent of all wrongdoing,
those agents are likely to dehumanize such travelers in order
to rationalize their own actions; if agents were to see these
Black and Latino women as basically like themselves (or their
wives or daughters), it would be hard to justify the
humiliation they had inflicted upon these innocent individuals.
So the agents focus on the women's race in order to create
psychological distance, thereby simultaneously increasing the
racial bias that led to the initial search decisions. Looked at
from this perspective, the agents' incredibly callous responses
to these women's suffering and to their complaints are
predictable; the callousness flows from, justifies, and
perpetuates racial stereotyping. Third, racial stereotyping is
perpetuated by modeling. As new agents observe the practices of
more senior employees, they learn bias on the job, along with
necessary skills. Racial profiling appears to be part of the
expertise they must acquire, and in the process of
participating in racial profiling, new agents reinforce any
biases they previously had.
Although racial bias, and the mechanisms that reinforce it
are the most important sources of racial profiling, in the
Customs setting, there are at least two other factors likely to
bear some causal responsibility. First is the issue of relative
costs: If agents perceive that racial minorities are less
likely to lodge complaints, it may seem less costly--in the
political sense--to select minorities for enhanced scrutiny
rather than to engage in racially blind screening of travelers.
This is one of the lessons of the New Jersey Turnpike
litigation, where some police officers have admitted that they
selected African American motorists for traffic stops in part
because they wished to decrease complaints. If we consider the
horrors described by Ms. Denson, it is easy to imagine that
officials would hesitate to impose such extreme treatment upon
someone who might turn out to be powerful. One of the purposes
of this hearing, of course, is to increase the perceived costs
of searching racial minorities, to make clear that perpetrating
outrages such as those described today is not made acceptable
by virtue of the victim's race, and indeed, that targeting by
race renders the intrusions less rather than more acceptable.
Finally, it should be observed that racial profiling will
occur more often where there is no sanction for engaging in it.
In the Customs context, internal rules do not appear to
prohibit consideration of racial factors. Moreover, the Supreme
Court has been extraordinarily loathe to interfere with border
searches. Not only is the standard for the requisite suspicion
needed to justify body searches much lower at the border, but
the Supreme Court has refused to prohibit the use of ethnic
criteria by the INS, thus creating at least a constitutional
void, if not lending tacit approval to reliance on racial
criteria.
With these powerful psychological and institutional forces
supporting the existing practice, it is insufficient for the
Commissioner to declare that Customs has no policy of targeting
racial minorities. Eradication of racial profiling requires
commitment, explicit prohibitions, new training, and careful
monitoring. Again, observations of racial profiling in other
law enforcement agencies are instructive. When New Jersey
officers were ordered to keep records to ascertain the extent
of race-based detentions, at least some of the officers
falsified racial information in order to conceal their
continuing discrimination. Similarly, if one examines either
the INS motorist stop cases or the DEA airport stop cases, it
is clear that both INS and DEA agents have used ludicrous
pretexts to hide heavy reliance upon race. As with all
entrenched practices, resistance to change, and in some
quarters, even intransigence, is to be expected. At this point,
good faith requires candid acknowledgment of past wrongs and
specific plans for reform; in their absence, corrective
legislative action would seem to be necessary.
Chairman Houghton. Thank you very much, Ms. Johnson.
Mr. Tobias.
STATEMENT OF ROBERT M. TOBIAS, NATIONAL PRESIDENT, NATIONAL
TREASURY EMPLOYEES UNION
Mr. Tobias. Thank you very much, Chairman Houghton and
Ranking Member Coyne and the Members of this Subcommittee. I am
very pleased to be here and testify this morning.
I would like to start by saying that--
Chairman Houghton. Pull the mike up just a little bit
further. Thank you very much.
Mr. Tobias. I would like to start, this morning, by saying
that on behalf of the employees of the Customs Service
represented by NTEU, I would certainly like to apologize to
those here today who were innocent but subject to personal
searches. Clearly, these are extremely humiliating experiences
for those who are subjected to these kinds of searches, and,
clearly, the rights--
Chairman Houghton. Mr. Tobias, can I interrupt again? You
have got to pull that mike very, very close to you. Thank you.
Mr. Tobias. Clearly, the right people are not chosen every
time, and I pledge my union's support to work with Commissioner
Kelly and Members of this Committee to establish procedures and
to provide training to Customs inspectors so that their
targeting is more accurate and search procedures are clear and
that the inspectors and the other Customs employees are well-
trained in these policies.
Customs employees condemn the use of discriminatory factors
as a basis for selecting passengers for secondary inspection or
more intrusive search techniques, but it is also important to
keep in mind and to remind ourselves that this is the time of
the year when we celebrate high school graduations in towns and
cities throughout the United States. Yet during this time of
celebration, there are alarming statistics that show that those
high school students who graduated in 1998, the percentage who
used illegal drugs in the 12 months prior to graduation
increased dramatically since 1992. More teenagers are
experimenting with drugs, which means that drugs are more
available to them. Presently, the greatest threat to our
Nation's youth from abroad is the threat of illegal and
dangerous drugs coming into the United States.
I agree with the Members of this Committee who have
repeatedly stated that we have to stop drugs from coming across
our borders, and Customs inspectors present the first line of
defense to the illegal importation of drugs and contraband
across our borders. They are on the frontlines at sea, land,
and airports. It is a very difficult, it is a very dangerous
job. They have been assaulted by travelers, shot, dragged to
their death by cars running ports, threatened and accosted. As
recently as last week, a Customs inspector in Puerto Rico was
shot on his way home from duty, because he was recognized as a
Customs enforcement official. Every day, these men and women
must resist smugglers' attempts to corrupt them through bribery
and threats.
They meet hundreds and often thousands of travelers every
day. Their job is to make split-second decisions about people,
while keeping in mind the danger that is often presented. They
are required to be courteous but at all times on guard and wary
of the traveler who may be dangerous to the Customs inspector
or other travelers.
The job requires stamina. Most work a minimum of three
different shifts without start and stop times. They have very
little control over their schedules, and they are on call of
management for orders to work overtime, and the job is
seriously undervalued. At the very height of a career and even
after 25 years of dedication to the Customs Service, the
average inspector will make a base salary of about $40,000 per
year. Unlike their counterparts in DEA, FBI, and Border Patrol,
the Customs inspectors do not have law enforcement status, thus
they are denied the benefit of a 20-year retirement that they
deserve.
The amount of work done is ever-increasing. In fiscal year
1999, Customs estimates it will process over 470 million land,
sea, and air passengers. This number is up by 10 million from
1998 and up 23 million from 1997. The Customs Service is being
asked to do more work, process more cargo and more passengers
with fewer inspectors and outdated technology. A drug
interdiction effort for the 21st century depends on 21st
century equipment and increased staffing levels to meet the
increases in the volume of travelers. The impact of not enough
people or technology means that the available data is not
analyzed which would increase the accuracy of targeting; reduce
unnecessary delays for passengers, and decrease the danger for
inspectors.
The shear volume of passengers at land, air, and sea ports
requires the Customs inspector to be cautious, scrutinizing,
and properly trained to select the potential smugglers or
otherwise dangerous people.
Now, there is no typical drug smuggler or a typical way to
smuggle drugs. Heroin has been strapped to human couriers, sewn
into the lining of a traveler's jacket, compressed into the
soles of travelers' hollowed-out tennis shoes, poured into
condoms and ingested, and hidden in luggage or other type of
belongings. Smugglers and distributors are teenagers, college
graduates, middle-aged businesspeople, senior citizens, and
young children. They are single, married, traveling with
babies, in tour groups or alone. Customs inspectors must be
attentive in their efforts to detect who is carrying drugs and
how it is being done. Of course, drugs are not in plain view.
Some smugglers have hidden drugs so well, they may even evade
body scanners deployed in the airport terminal.
To narrow the field between the innocent traveler and the
drug smuggler, inspectors use criteria developed by the Customs
Service through the analysis of historical data. Such
indicators include the traveler's origination of flight,
including whether the traveler's flight included a stopover in
a source country, the duration of stay, the method of payment
for the ticket, the traveler's employment history, and many
others. Most indicators are gleaned from a quick interview with
the arriving passenger. The interview process should narrow the
search to those who may be attempting to smuggle drugs. Certain
passengers will display behaviors, such as avoiding eye
contact, seeming nervous, or failing to answer simple
questions. In these situations, the trained inspector will be
on alert that the passenger may be carrying illegal contraband.
It is important that these criteria be constantly updated
based on new intelligence and the constantly changing tactics
of drug smugglers. In addition, it is important to ensure that
whatever criteria are developed and applied, they are not done
so in a discriminatory manner. The current criteria used by the
Customs Service to identify a traveler for a more detailed
interrogation or a personal search are being reviewed by a
Personal Search Commission, chaired by Under Secretary
Constance Newman. We look forward to the recommendations of the
Commission and to working with Commissioner Kelly to ensure
that search policies, if necessary, are changed to safeguard
against discrimination.
Just as Customs inspectors must be diligent in their
efforts to protect our borders from illegal trade or drug
activity, so, too, they must protect the constitutional rights
of all travelers. Commissioner Kelly has proposed, and NTEU
agrees, that there must be regular training opportunities for
Customs enforcement personnel. It is not enough to have one
formal training opportunity at the beginning of a career. In
the constantly changing environment faced by Customs
enforcement personnel, they must have the opportunity to
receive new information, learn more techniques, and understand
the changing laws and regulations. This type of training will
allow better targeting of travelers. We will work to ensure
that the Customs employees get the training necessary so that
the policies to be followed are understood by all.
The U.S. Customs Service must facilitate the flow of
legitimate trade and travel, while interdicting the illegal
contraband and drugs, although this is a seemingly impossible
mission--more and more people are traveling; more and more
cargo is flowing across our borders ever year, and the agency
continues to seize more illegal narcotics than all other
Federal agencies combined.
With more personnel and technology and with increased focus
on training and employee education, we can ensure better
targeting and consistent application of the agency's search
policies and procedures which will enable the Customs Service
to continue to perform its critical enforcement mission while
safeguarding the rights of the traveling public.
I would like to offer NTEU's assistance and cooperation to
this Committee as it reviews the difficult issues before it.
Thank you for this opportunity, Mr. Chairman.
[The prepared statement follows:]
Statement of Robert M. Tobias, National President, National Treasury
Employees Union
Chairman Houghton, Ranking Member Coyne and Members of the
Subcommittee, my name is Robert M. Tobias, and I am the
National President of the National Treasury Employees Union
(NTEU). NTEU represents approximately 155,000 federal
employees, about 13,000 of whom work for the United States
Customs Service. The majority of Customs employees represented
by NTEU are inspectional personnel working at ports of entry
throughout the United States and in Canada. I would like to
thank the Subcommittee for this opportunity to present our
Union's views on the very important issue of passenger
inspection operations at the U.S. Customs Service.
Today, I would like to give you a sense of what Customs
officers face each day that they report for duty. And, on
behalf of all inspectional personnel represented by NTEU, I
would like to state unequivocally that Customs Service
employees condemn the use of discriminatory factors as a basis
for selecting passengers for secondary inspection or more
intrusive search techniques.
The Customs Mission
This is usually the time of year when we celebrate high school
graduations in towns and cities throughout the United States. Yet,
during this time of celebration, we must not forget the alarming
statistics that show that of those high school students who graduated
in 1998, the percentage of them who used illegal drugs in the twelve
months prior to graduation increased dramatically since 1992. Marijuana
use by graduating seniors in the twelve months prior to graduation
increased by 80% since 1992. Heroin use increased by 100% and cocaine
use by 80%. More teenagers are experimenting with drugs which means
that drugs are more available to them. Presently, the greatest threat
to our nation's youth from abroad is the threat of illegal and
dangerous drugs coming into the United States.
We must stop drugs from coming across our borders. We must make the
eradication of drug use in the United States a number one priority in
Congress. These are not just my sentiments, these are quotes from
members of this committee on the importance of the War on Drugs.
Inspectional Personnel
Customs inspectors present the first line of defense to the illegal
importation of drugs and contraband across our borders. They are on the
front lines at sea, land and air ports. They have been assaulted by
travelers, shot at, dragged to their death by cars running ports,
threatened and accosted. Very recently, a Customs inspector in Puerto
Rico was shot, on his way home from duty, because he was recognized as
a Customs enforcement official. Every day these men and women must
resist smugglers attempts to corrupt them through bribery and threats.
For as many travelers as there are crossing our borders or landing
in our international airport terminals, there are reasons they have
made the trip. The job of the Customs inspector is to safeguard our
borders from those who want to violate our trade and drug laws while
facilitating the travel of all innocent persons. There is a tremendous
amount of pressure on the Customs inspectors who greet arriving
travelers from all over the world. Their job is demanding and
dangerous. Customs inspectors carry weapons and undergo mandatory
firearms training. They are taught to make arrests. They learn
defensive tactics for protecting themselves from dangerous criminals
with whom they may come face to face. They must be courteous, but at
all times on guard and wary of the traveler who may be dangerous to the
Customs inspector or other travelers.
Not many people recognize the concessions inspectors make for the
Customs Service. Cargo shipments and travelers cross our borders at all
times of the day and night, and Customs inspectors must be there to
process them. Most work a minimum of three different shifts with odd
start and stop times. They have very little control over their
schedules, and they are at the call of management for orders to work
overtime.
At the very height of a career, and even after twenty-five years of
dedication to the Customs Service, the average inspector will make a
base salary of about $40,000 per year. Unlike their counterparts in the
DEA, FBI and Border Patrol, the Customs inspectors do not have law
enforcement status, thus they are denied the benefit of a twenty-year
retirement that they deserve.
Increased Traffic and Travel
In FY 1999, Customs estimates it will process over 470 million
land, sea and air passengers. This number is up by about 10 million
from 1998, and up 23 million from 1997. Currently, staffing levels at
almost all ports around the country are at minimum levels. Every year,
the Customs Service is being asked to do more work, process more cargo
and more passengers with fewer inspectors and outdated technology. A
drug interdiction effort for the 21st century depends on 21st century
equipment and increased staffing levels to meet the increases in the
volume of travelers.
Processing Travelers
Whether inspectors are working at land, sea or air ports, most of
the people they encounter will be unknown to them. In the case of some
commercial vessels and airplanes, Customs inspectors may receive
advance information about arriving passengers. In airports, this
information may be analyzed by the Customs Passenger Analysis Unit
(PAU) and the inspectors on duty may have some advance intelligence on
the arriving passengers. But, too often this information is not
forthcoming from the commercial airlines, or there are too few PAU
employees to properly analyze the data and provide it to the
inspectors. Customs does not have enough staffing to field the
necessary number of ``rovers'' who walk among the passengers and watch
for odd behaviors and actions. Staffing shortages have also resulted in
decreased staffing at ``choke points,'' where passengers first arrive
in an airport Customs area. The Agency simply does not have enough
staffing to cover all bases for passenger operations. This situation
leads to unnecessary delays for travelers and increased dangers for
inspectors.
In addition to staffing shortages, there is a profound lack of
technology and information gathering equipment to adequately process
travelers. We task these inspectors with greeting the traveling public,
quickly learning more about them and making split second decisions that
can either facilitate or delay their travel.
In most cases, a passenger will be cleared immediately after
retrieving his or her luggage. For some, a Customs inspector may ask
several questions. For fewer, the inspector will direct the traveler to
the secondary area for a personal search. Currently, the minimal
staffing levels at most ports of entry allow for only 2% of the cargo
and passengers to be reviewed in the secondary area. The sheer volume
of passengers at land, air and sea ports requires a Customs inspector
to be cautious, scrutinizing and properly trained to select potential
smugglers or otherwise dangerous people.
Human Drug Couriers
There is no typical drug smuggler or a typical way to smuggle
drugs. Heroin has been strapped to human couriers, sewn into the lining
of a traveler's jacket, compressed into the soles of a traveler's
hollowed-out tennis shoes, poured into condoms and ingested, and hidden
in luggage or any other type of belonging. Smugglers and distributers
are teenagers, college graduates, middle-aged business people, senior
citizens and young children. They are single, married, traveling with
babies, in a tour group or alone. Customs inspectors must be attentive
in their efforts to detect who is carrying drugs and how. Of course,
drugs are not in plain view. Some smugglers have hidden drugs so well
that they may evade body-scanners deployed in the airport terminal.
Personal Search
The most effective method available to Customs inspectors today, to
find concealed drugs on a human courier, is the personal search. In
1998, Customs seized over two and one half tons of illegal narcotics on
and in the bodies of drug smugglers. Any invasive physical contact is
unpleasant for a traveler, and while less intrusive methods of
searching the bodies of suspected smugglers are available, these body
scan machines are extremely expensive and have been deployed in Customs
areas in just two major airports so far.
Criteria to Narrow the Target
To narrow the field between the innocent traveler and the drug
smuggler, inspectors use criteria developed by the Customs Service
through the analysis of historical data. Such indicators include the
traveler's origination of flight, including whether the traveler's
flight included a stop-over in a source country, the duration of stay,
the method of payment for the ticket, the traveler's employment history
and many others. Most indicators are gleaned from a quick interview
with an arriving passenger. The interview process should narrow a
search to those who may be attempting to smuggle drugs. Certain
passengers will display behaviors such as avoiding eye contact, seeming
nervous or failing to answer simple questions. In these situations, a
trained inspector will be on alert that the passenger may be carrying
illegal contraband.
The inspectors are required to apply criteria developed by the
Customs Service. It is important that this criteria be constantly
updated based on new intelligence and the constantly changing tactics
of drug smugglers. In addition, it is important to ensure that whatever
criteria are developed and applied, they are not done so in a
discriminatory manner. The current criteria used by the Customs Service
to identify a traveler for a more detailed interrogation or a personal
search are being reviewed by a Personal Search Commission chaired by
Under Secretary Constance Newman. We look forward to the
recommendations of the Commission and to working with Commissioner
Kelly to ensure that search policies, if necessary, are changed to
safeguard against discrimination.
Just as Customs inspectors must be diligent in their efforts to
protect our borders from illegal trade or drug activity, so too, they
must protect the Constitutional rights of all travelers. Commissioner
Kelly has proposed and NTEU agrees that there must be regular training
opportunities for Customs enforcement personnel. It is not enough to
have one formal training opportunity at the beginning of a career. In
the constantly changing environment faced by Customs enforcement
personnel, they must have the opportunity to receive new information,
learn more techniques, and understand the changing laws and
regulations. This type of training will allow better targeting of
travelers. We will work to ensure that Customs employees get the
training necessary so that the policies to be followed are understood
by all.
Personal Search Policies and Procedures
Whenever a passenger is referred to the secondary area for a
personal search, an inspector must follow the Customs Service's nation-
wide policies and procedures. Inspectors at every port of entry around
the country are taught these procedures when they receive their initial
training at the Federal Law Enforcement Training Center (FLETC). But,
these policies must be reiterated and relearned so that inspectors who
may not perform personal searches regularly are aware of every nuance,
change in policy or added procedure. Currently, Customs does not
provide standardized update training to continue the education process
and alert inspectors to new patterns and methods of smuggling. There is
no follow up training after inspectors have been working for several
years, where they can comment on the policies and procedures, and
Customs can reinforce the law and policies on personal searches. There
must be regular, formal training opportunities for Customs enforcement
personnel.
The United States Customs Service must facilitate the flow of
legitimate trade and travel while interdicting illegal contraband and
drugs. Although this is a seemingly impossible mission, more and more
people are traveling, more and more cargo is flowing across our borders
every year, and the Agency continues to seize more illegal narcotics
than all other federal agencies combined. With more personnel and
technology and with increased focus on training and employee education
we can ensure better targeting and consistent application of the
Agency's search policies and procedures, which will enable the Customs
Service to continue to perform its critical enforcement mission while
safeguarding the rights of the traveling public.
Shortly after the Personal Search Commission was formed, I sent the
attached letter to Under Secretary Newman asking to provide the views
of front line Customs personnel to the Commission and offering NTEU's
assistance and cooperation. I would also like to offer NTEU's
assistance and cooperation to this Committee as it reviews the
difficult issues before it.
Thank you for the opportunity to be here today on behalf of the
Customs Service employees to discuss these very important issues.
The National Treasury Employees Union
Washington, DC, May 6, 1999.
The Honorable Constance Berry Newman
Under Secretary
Smithsonian Institution
Washington, D.C.
Dear Under Secretary Newman:
I have recently learned that U.S. Customs Service Commissioner
Raymond Kelly has appointed you to chair the Independent Personal
Search Review Commission which will review the procedures and policies
of the U.S. Customs Service regarding passenger searches. I write to
request an opportunity to provide the Commission with the views of
Customs inspectors who perform their duties every day at our land, sea
and air ports throughout the country.
Customs inspectors experience first hand the rigors of inspectional
work and they have keen insight into the constantly changing
environments at our ports of entry. Their views will be valuable to
your Commission as you conduct your review.
Thank you for considering my request to appear before the
Commission. Please feel free to contact me if you have any questions. I
look forward to your response.
Sincerely,
Robert M. Tobias
National President
Chairman Houghton. Thank you very much, Mr. Tobias.
We are going to continue here for about 5 minutes, and then
we are going to have to vote. We will interrupt the hearing,
and then we will come right back.
Mr. Coyne.
Mr. Coyne. Thank you, Mr. Chairman.
Mr. Tobias, have any of your members of the union ever
complained about being instructed to concentrate on minorities
when making searches?
Mr. Tobias. Well, your question assumes, Mr. Coyne, that
they have been instructed to focus on minorities, and I am not
aware that anyone has been instructed to focus on minorities.
Mr. Coyne. So, none of them have ever complained to you
that they have been instructed to do that?
Mr. Tobias. No.
Mr. Coyne. OK. Is there any racial profiling at Customs
now, to the best of your knowledge?
Mr. Tobias. To the best of my knowledge, the answer is no.
Mr. Coyne. Has there ever been, to your knowledge?
Mr. Tobias. To my knowledge, the answer is no.
Mr. Coyne. Have Customs employees ever been disciplined for
selecting passengers for personal searches based on race or
other illegal factors?
Mr. Tobias. You know, I don't know the answer to that
question, Mr. Coyne. What I can say is that no person has come
to the union to be represented for that kind of a disciplinary
action, but it could have happened, and we just wouldn't be
aware of it. So, to the extent I know, the answer is no.
Mr. Coyne. If more funds were available to train Customs
inspectors on appropriately identifying and searching
passengers, what specific skills would need to be improved, in
your judgment?
Mr. Tobias. Well, I think that--one of the problems, I
think, that the Customs Service faces, like all law enforcement
agencies, is patterned behavior. If you fall into a pattern of
behavior without an opportunity to say, ``Well, I have been
doing it this way, because it has yielded results,'' and there
is not an opportunity to step back and say, ``OK, this is the
way I have been doing it, but maybe there is a different way.
Maybe there is information from other agencies that are doing
it differently.''
Right now, the only training a Customs--formal training a
Customs inspector gets is his initial training; that is not
enough. In order to be a professional law enforcement agency,
people have to be constantly challenged with new information,
new opportunities, new strategies, new techniques. That doesn't
happen in the Customs Service.
Mr. Coyne. Could you briefly describe what that initial
training is?
Mr. Tobias. It is several weeks of formal training in the
Law Enforcement Officer Training School in Georgia.
Mr. Coyne. Thank you.
Chairman Houghton. Mr. Portman.
Mr. Portman. Mr. Chairman, I will be brief with the hope
that we can get back down to the other side of panel.
I was going to ask about training also. I am pleased to
hear, Mr. Tobias, about the Newman Commission. I wonder if you
could tell us when that is expected to report?
Mr. Tobias. Soon. I don't have a date.
Mr. Portman. In your testimony, you attached a letter that
you had sent to Under Secretary Newman hoping that input from
Customs people on the line in the field would be included in
their deliberations. Has that been done?
Mr. Tobias. It has not happened yet.
Mr. Portman. I would hope that that would happen and that
we can get--it sounds like there is an effort being undertaken
to have an independent review of personal searches, generally,
through this Commission. I think that would be very helpful to
the Subcommittee.
Mr. Tobias. I agree.
Mr. Portman. Let me just quickly ask, if I could, some of
the early witnesses who spoke--and, again, I appreciate your
willingness to come today, Ms. Buritica, particularly, and Ms.
Denson, and for your willingness to talk publicly on the record
about a very difficult personal experience you had, and our
hearts go out to you, because it sounds like it was indeed a
very disturbing sequence of events and many hours you had to go
through.
I would just ask you a question following on the questions
that I asked the Commissioner earlier about less intrusive
means. I know that some of these less intrusive means, such as
a body scan where you are able to keep your clothing on, and
you go through a scan that essentially tells you whether there
is something hidden underneath your clothes. As compared to a
strip search, for instance, it would be an alternative to that,
whether that would have been something that you would have
found to be as troubling--would you have had any trouble, any
problem going through that kind of a body scan? Ms. Buritica.
Do you understand my question?
Ms. Buritica. I am sorry; I didn't understand your
question.
Mr. Portman. There is new technology being developed, and
it is employed, I understand, at some airports already where
instead of having a strip search, people who are identified, in
whatever means they are identified, are simply asked to go
through a piece of equipment where you can keep your clothes
and have--you talked particularly, Ms. Buritica, about your
humiliation you felt through that strip search, and the
alternative would be to go through a scan that would be able to
determine, not internal but external, drugs or anything else
that might be hidden. Would that have been something that you
would have had a problem going through had you been asked to do
that?
Ms. Buritica. I think it would make a difference. I think
it would make a difference rather than have someone take off
their clothes against their will. I think it would make a
difference.
Mr. Portman. Ms. Denson, do you have any thoughts on that?
Ms. Denson. Obviously, in my case, I would have been
thrilled to just walk through a scanner versus being treated
the way I was treated.
Mr. Portman. Well, I think we have to--obviously, that
would not, as I understand it, be a replacement for everything
you had to go through from a Customs perspective, but at least
a strip search could be avoided through that kind of
technology, and perhaps we can look more into these kinds of
questions after we get back from our votes.
And, again, I thank you all for being here, and thanks, Mr.
Tobias.
Chairman Houghton. Yes, thanks very much. If you can just
hold with us, we will be right back. Thank you.
[Recess.]
Chairman Houghton. Could we continue the hearing? Thanks
very much.
Mr. Lewis.
Mr. Lewis. Thank you, Mr. Chairman.
Mr. Fox, Mr. Tobias stated that to his knowledge no Customs
inspector had complained about being told to engage in racial
profiling. To your knowledge, is this the case? Is this true?
Mr. Fox. There has been a well-publicized case out of your
district in Georgia where a Customs inspector named Kathy
Harris complained about how the investigations and the searches
were going on, and she then got disciplined, and then--I don't
know all the details of that--but then it was found that she
was actually correct, and the person who disciplined her then
got disciplined himself. So, there was a big thing in your home
district regarding that.
Mr. Lewis. Mr. Fox, would you please describe what criteria
Customs and the courts have established regarding a Customs
inspector's ability to stop and search travelers?
Mr. Fox. I am not sure I understand your question. What are
the criteria to stop and search travelers?
Mr. Lewis. Yes.
Mr. Fox. I have read many, many incident logs, and I have
also read the policy manual carefully. I have taken depositions
of Customs inspectors, and it is clear from looking at all
these materials that the criteria are so vague and amorphous
they could literally be used to justify the search of anybody,
and I will give you some examples.
Frequently, for the women that they have done searches of
coming from Jamaica, they will list three factors. They will
say coming from a source country; they will say they wore bulky
clothing, and they were nervous. That is the most common
tactics used among Customs inspectors when they have to justify
a search, and the interesting thing about that is that in
deposition testimony, Customs inspectors have said that every
country in the world can be deemed to be a source country and
is deemed to be a source county, because you never know where a
traveler had been prior to the flight which brought them to the
border anyway.
So, when you couple that with the policy manual--and I
think it was mentioned there were 43 factors that are looked
to. The 43 factors, themselves, are so vague and amorphous,
they can be used on anybody. For instance, the factors--we will
say if a person acts unusually cool in light of questioning,
that could be a sign. Then they also say if a person acts
unusually argumentative, that could be sign, or contradictory.
If a person--another one--if a person wears revealing clothes,
that could be a sign. If a person dresses real conservatively,
that can be a sign. And you can go down the list and see that
every factor, almost, has a counterpart, which then makes it
potentially applicable to 99 percent of the travelers that come
through, and then Customs can just use these--and they do--as
they feel necessary.
Mr. Lewis. Professor Johnson, how would you address the
argument that race should be a factor and that inspectors are
just doing their job?
Ms. Johnson. Well, it may be the case that there are
somewhat more proportionately Black women who are engaged in
drug trafficking; it may be. We don't really have the
information that would tell us that, because we just don't have
the data on who's engaging that. But even if it were true, it
is absolutely clear that whatever prohibitive ability there
might come from race, it is vastly overestimated by Customs.
Black women are searched and unsuccessfully searched at greater
rates, but I think even more important than the fact that it
would be statistically erroneous is that that puts the burden
of law enforcement on minority communities, and the burden of
law enforcement has historically always been placed largely on
minority communities, and it is wrong to do that. The
Constitution says it is wrong to do that, and everything we
know about race relations in this country ought to tell us
that.
Moreover, I think it is important to notice that there is
an additional humiliation of being searched or treated in any
disrespectful way when you know that it is on the basis of your
race. So, that that kind of profiling is not only damaging in
that it subjects people to those searches, but it also subjects
them to degradation and humiliation really through racial
stigma, which we ought to avoid at all costs.
Mr. Lewis. Ms. Buritica and Mrs. Denson, as one Member of
Congress and as a Member of this Committee, let me apologize to
you. What happened to you shouldn't happen to anyone, and I
will tell you I will do all in my power to see that it never
happens again. This reminds me of another period back in 1961,
38 years ago, when I was on the freedom ride, and we went to
the State penitentiary at Mississippi, and we were strip
searched. Our civil rights, our civil liberties were being
violated, and I think your civil liberties and your civil
rights were violated.
Thank you, Mr. Chairman.
Chairman Houghton. Thank you, Mr. Lewis.
Mr. Hulshof.
Mr. Hulshof. Thank you, Mr. Chairman.
Ms. Buritica and Ms. Denson, let me also echo what Mr.
Lewis has said. There really is no amount of money that can
compensate you for the experience that you have undergone. I
recognize, Ms. Buritica, that in your testimony, you mentioned
that there was some sort of a court settlement. I assume that
was without a jury trial. Was that settlement reached before
going to a jury?
Ms. Buritica. I am having a hard time----
Mr. Hulshof. Yes, ma'am. In your testimony, you mentioned
that you received a monetary award after a civil lawsuit was
filed. Was that an out-of-court settlement that you reached
with the other side or was that after a jury trial?
Ms. Buritica. It was after a jury trial, sir.
Mr. Hulshof. Ms. Denson, let me ask you without divulging
the--I recognize you have counsel with you--is there ongoing
litigation regarding your situation right now, Ms. Denson?
Ms. Denson. Yes.
Mr. Hulshof. OK. Let me turn, Mr. Fox and Professor
Johnson. Professor Johnson, time doesn't permit--I would love
to have a good dialog with you about having defended and
prosecuted 17 capital murder cases, the issue of race in
capital crimes, but that is not the issue that is here before
us.
Mr. Fox, let me ask a couple of questions. The statistics
that we have up here, Customs say that there have been only 12
cavity searches in the entire country last year. Is that true
or false or do you take issue with that number?
Mr. Fox. Well, I can answer it this way: I have seen their
statistics from 1997, and they list zero Black women being
cavity searched in 1997; I personally know of three.
Mr. Hulshof. So, some question--and any time we start
talking about statistics, you recognize or you have mentioned
in your testimony, Mr. Fox, that African-American women are
searched 46 percent of the time. Professor Johnson, you
mentioned that Black women are likely to face eight times the
risk of a strip search, and I know when we get into these
numbers, I don't know that we can compare them.
For instance, let me ask you, Mr. Fox, you mentioned, in
your testimony that one in five searches of African-American
women are positive; that is 20 percent of the time contraband
is discovered. Now, when you include the word ``searches,''
does that mean like a Terry v. Ohio pat down or are you talking
about a cavity search or a strip search?
Mr. Fox. Actually--to correct that--it is actually more
than 80 percent, and I believe the number 17 percent. So, 83
percent of the time there is nothing there, and I reviewed all
of the incident logs from those searches. Many times, the drugs
were found in the luggage or in other places; they weren't
necessarily found in the body cavity.
Mr. Hulshof. So, when you include 17 percent of the
positive searches, as you cite, that could include clothing,
luggage beyond the very intrusive type of searches that we have
been hearing about today?
Mr. Fox. It does include that.
Mr. Hulshof. Do you agree, Mr. Fox, or disagree with the
Commissioner that pad down searches and the more intrusive
searches are, in fact, a deterrent at our borders to stem the
flow of drugs coming into our country?
Mr. Fox. Of course they are deterrent. I think what has to
be looked at is the costs that it is costing society against
the evil you are trying to eradicate, and I know--and a lot of
numbers have been thrown out--I have the statistics from 1997
at O'Hare, and, for example, they found 56 pounds of cocaine at
O'Hare in 1997. That is 56 pounds too much, no doubt, but it is
not the great big numbers, and when you weigh that against the
cost that this has done to people's lives, I am not sure if it
is worth it. And, at some point, when you balance the cost
against the evil you are trying to eradicate, you cross the
line from being a democracy to being a police State, and I
think we might have gotten there.
Mr. Hulshof. Mr. Fox, do you take criminal cases regarding
these situations, as well, or mostly civil litigation?
Mr. Fox. I have taken one criminal case.
Mr. Hulshof. Do you believe that there--you mentioned in
the last page of your testimony that a magistrate's
authorization should be required; that is a search warrant
before searches could take place. Would that include all
searches, including casual contact or maybe a pat down?
Mr. Fox. No, I believe--and I think the case law would
support--that once you become strip searched that is a serious
enough intrusion that your liberty interests are implicated,
and a magistrate would be required.
Mr. Hulshof. In one of your examples from Customs logs, you
point out in the first one--since that is probably the one time
that I am going to have to ask you--``frequent traveler from a
source country of Jamaica,'' which you would agree is known as
a source country for importation of drugs, would you not?
Mr. Fox. They say it is. I don't have any comparison
statistics.
Mr. Hulshof. OK. Fifty percent of the cocaine is seized
from passengers coming from flights from Jamaica. Does that
comport with the numbers that you know or should we just leave
the numbers aside?
Mr. Fox. That is consistent, but the problem is they leave
out--they don't search the flights coming from many European
countries and other places in the world.
Mr. Hulshof. Mr. Chairman, if you would just indulge me for
this follow-up. On that one example from the Customs log,
``frequent traveler from Jamaica through Miami; three trips in
the course of 4 or 5 months.'' Would it not be reasonable or is
it reasonable for Customs to ask questions regarding reason for
travel and other pertinent information, and if a business
traveler, legitimate business traveler, would you not expect
there to be some sort of documentation they could prove, show
to these Customs--that is not an intrusive stop, is it?
Mr. Fox. If they were to stop white males who were frequent
business travelers and do the same thing, I would have no
problem with it, but they don't.
Mr. Hulshof. My time has expired, Mr. Chairman, and I thank
you for the time.
Chairman Houghton. OK, Mr. Hulshof, you may want to ask
other questions.
I would like to, sort of, associate myself for a minute
with Mr. Lewis, who I work with on a variety of different
projects.
Clearly, there is racial bias in this country; there is no
question about that. We hope it is less than it was, but it is
still there. We hope we are doing things to help improve that,
and you just have to keep working on it, bit by bit by bit. So,
I guess the question for today's hearing is that with the
Booze-Allen report in the background making certain
suggestions, are those the things or are there other things we
can do to make the Customs Service more sensitive to this. I
would really like to ask you, Mr. Tobias, what you think?
Mr. Tobias. Well, thank you, Mr. Chairman. One thing I
would like to say is that NTEU is currently representing Kathy
Harris in a disciplinary procedure, but that is not based on a
contention that she was told to use racial statistics.
And I think it is important to keep in mind when we are
considering these issues, that while maybe 56 pounds of illegal
narcotics were seized in O'Hare, in 1998, 2.5 tons of illegal
narcotics were seized across the country from people who were
carrying it on their person or in their luggage. That is a lot
of drugs. And I think that the focus has to be on the fact that
people do bring illegal drugs into this country on their
person, and what we have to be doing is focusing on identifying
those folks who are indeed the most likely carriers and
supporting these Customs inspectors and canine enforcement
officers with the training and the technology that they need to
be successful. Obviously, the trauma that is associated with
making a mistake is large, and so a lot more work has to be
done, and I think a lot more work can be done to do a better
job as a Customs inspector and a canine enforcement officer.
Chairman Houghton. OK. Mr. Rangel, I would like to call on
you. You have always been very sensitive and concerned about
these issues. So, would you like to do some questioning here?
Mr. Rangel. Thank you for the courtesy, Mr. Chairman.
I couldn't help but think of my mother, sister and daughter
when I heard the testimony of these ladies. I suspect that most
people when they hear these type of stories put themselves in
the same situations as to how they would have felt if something
like that had happened to one of their loved ones. I think it
takes a lot of courage to come here publicly and to share with
us these experiences. So, at least on this side of the mike,
when part of the Government goes wrong, we apologize for that
part of the Government.
Mr. Tobias, I am really disappointed at the lack of outrage
in response to the testimony we have heard and the questions
that you have been asked. To read your testimony, one would
think that an attack has been made on the integrity of the
dedicated men and women who serve with Customs. Nothing is
further from the truth. What we are talking about are people
who behave in such a manner that decent human beings find that
to be repugnant. The Chairman of this Committee was asking you
what contribution in a positive way could you make to assist us
in seeing that these type of things don't happen again. But you
said that you really think the focus ought to be on drugs and
likely carriers. Oh, no. That is not what this hearing is
about.
This hearing is about human beings, American citizens,
being treated in an uncivilized way that makes no American
proud. That is the focus of this particular hearing. If you
think the focus should be on likely carriers, then we would
assume that without the statistical data, that you have already
made the conclusion, based on the work of Customs, that Blacks
and Latinos are more likely carriers of drugs than others. We
would assume that if you don't really check Whites and you only
check Blacks and you find more Blacks have drugs because you
didn't checks Whites, that this is a formula that you approve.
We would assume that the 2\1/2\ tons of drugs that you, I
think, say were confiscated, that all of this came as the
result of the uncivilized way in which we handled these two
ladies, in that they were hidden in body cavities. We would
assume that your defense would mean that we don't want to stop
drug trafficking, that we don't want searches. None of this is
true. We are talking about the manner in which citizens have
been treated; that is what we are talking about. And we are
asking for your assistance in how we can stop drugs without
having to be a part of this type of treatment, which is
basically un-American.
Now, do you know, since you are armed with so many
statistics, how many people have cavity body searches and how
much drugs was actually confiscated as a result of these
searches?
Mr. Tobias. Mr. Rangel, I think it was before you came into
the room. I started my testimony by apologizing to the
witnesses who----
Mr. Rangel. I was here. I said it lacked outrage.
Mr. Tobias. And I think the experiences that were described
here were indeed and are indeed humiliating, and, as I say, I
apologize to the folks who were here, and, obviously, this kind
of action, this kind of result is unacceptable; there is no
question about that.
Mr. Rangel. How much drugs came out of body searches?
Mr. Tobias. I don't have the answer to that.
Mr. Rangel. How many body searches did you have where there
were no drugs?
Mr. Tobias. I don't know the number.
Mr. Rangel. Well, let me tell you one thing, Mr. Tobias, no
one has challenged the integrity of Customs in terms of its
risking their lives in trying to protect Americans. But, each
time something is done wrong, there is no need to defend the
Corps. We defend the Corps, and we always have, but there are
certain people in the Corps that bring disgrace on Customs, on
the U.S. Government, and you and I, together, we have to make
certain that this doesn't happen. Clearly, there is overtone of
racism in the United States, and Customs is able to avoid
having people just look at people's color. These numbers that
we have, and you will look at and get back to us, are
astounding. It is not justified.
The question I will ask you to study and come back to us is
this: When you ask a person to submit to the type of things
that these ladies and probably men are asked to do, I want to
know whether you think it is a deterrent to drug smuggling? I
want to know how successful you have been with these searches?
The Commissioner truly believes that those who put these type
of dangerous drugs in their bodies, and have it in their bodies
for over 8 hours, that they put themselves and their lives at
risk. Do you believe that to be so?
Mr. Tobias. I do.
Mr. Rangel. You might consider, then, letting all
passengers know that they might be held for 8 hours. I think
they would respond a lot more readily if they thought their
lives were in danger. I think Attorney Fox said it. For the
results we get, I want you to tell us, Mr. Tobias, is it worth
what we are doing? There has to be a balance.
I hope you continue to do the good work at Customs, and I
hope to see the union in the frontline of maintaining its
reputation by making certain that we don't have complaints like
this because of the way these people have been treated.
Mr. Tobias. I will be happy to respond to you, Mr. Rangel.
Mr. Rangel. Thank you, Mr. Tobias.
Chairman Houghton. Picking up on this, Mr. Tobias, the
Booze-Allen report really is written in terms of communication
between Customs and the passengers. The thing that intrigues me
is this Personal Search Review Commission, because it not only
involves the mechanics of it, but also the training, emphasis,
and the weeding out of those people. Also, I would imagine,
that it would take a look at recruitment. I would hope that you
could have a very close look at that, as it evolves, and as the
Commission begins to work. I think it will have a direct
bearing on the things which we have been concerned with here
today.
Well, ladies and gentleman, I want to thank you so much,
particularly, Ms. Buritica and Ms. Denson. I really appreciate
this, and I hope if there are any other issues that you think
that we ought to look into in our overall process of hearing
and oversight on this case, you let us know.
So, thank you.
[Whereupon, at 11:42 a.m., the hearing was adjourned.]
[Submission for the record follow:]
Statement of Andrew M. Caplan, Alexandria, VA
I submit the following statement to the Subcommittee based
on my concerns, as both an attorney and an American citizen,
that the U.S. Customs Service is exercising its statutory
authority in a manner which is resulting in the abuse of
innocent Americans, and in conduct by individual Customs
officers that is marked by racist, anti-Semitic, and other
forms of discrimination inconsistent with our Constitution and
its command that all persons be accorded equal protection of
law.
The first part of this statement recounts an incident to
which I was recently a party upon my return to the United
States from a trip overseas. The second part examines the
relevant Constitutional background to Customs' search and
seizure authority and discusses the inconsistency between
current Customs' practices and the Constitutional guarantee of
equal protection of law. Finally, the third part of this
statement draws on my experience as a former military attorney
in the U.S. Armed Forces to suggest a potential legislative
amendment to Customs' existing statutory authority which, in my
view, should correct the current deficiencies in the agency's
practices.
During the last two week of October 1998, I visited Sweden,
Norway, and the Netherlands. I returned to the United States on
October 30, 1998 via Amsterdam, the Netherlands, arriving at
the Detroit Metro-Wayne County Airport on Northwest flight 8617
(which is a code-share flight operated by KLM Airlines). My
ticket for this flight was purchased with a major credit card,
through a travel agent, as part of a travel package (including
air tickets and hotel accommodations) sponsored by Northwest
World Vacations.
Upon exiting the aircraft, I proceeded through the jetway
connecting the airplane with the gate area. While in the
jetway, I observed what I recognized to be a drug detection
dog. I proceeded past the dog without incident. However, while
still in the jetway, I observed the same dog approach a woman
standing near me and, in a spirited and zealous fashion, lunge
at the individual, requiring a uniformed officer to, in effect,
remove the dog from the person. The actions of the dog in
relation to the individual were entirely unique and distinct
from the dog's actions in relation to all the other passengers
in the jetway and, in my view, constituted a possible ``alert''
on the individual. The individual in question was a pale-
complexioned Caucasian woman with light blonde hair who
appeared to be approximately 30 years of age.
After clearing the Immigration/Passport Control area and
retrieving my checked baggage, I proceeded to the Customs
checkpoint area and was approached by a uniformed Customs
officer. I was wearing black, wing-tip shoes, charcoal grey
wool slacks with cuffs, a black turtleneck shirt, a grey wool
sportscoat, and a tan London Fog trench coat. (Due to the fact
that northern Europe can be quite cold by the end of October,
virtually all of the arriving passengers were wearing bulky
outer garments of one sort or another.) My hair was roughly the
same length as when I was on active duty as a naval officer,
and I was not wearing any facial hair. I was 36 years of age at
the time. The Customs officer asked to see my passport and
Customs declaration form. She asked where I had traveled and
what was the purpose of my trip. She asked what I do for a
living and who is my employer, to which I responded that I am
an attorney and work for a federal agency, and I specified the
agency. She then asked who was my prior employer, to which I
responded that I had previously worked for a different federal
agency, and specified the agency. She then asked, again, what
type of work I do, and I, again, stated that I am an attorney
and work in the General Counsel's office of my agency.
(The views expressed in this statement are strictly my own
as a private citizen and are not intended to represent the
views or policies of my current agency or former agency. For
this reason, I have omitted the names of my current and former
agency. I will be happy to supply this information to the
Subcommittee upon request.)
Without explanation, I was ordered by the officer to follow
her, in full glare of the other passengers (who appeared to be
proceeding through the Customs area without any questioning or
search at all) to a different room where I was ordered to place
my luggage, a 26-inch upright, ``pullman'' style American
Tourister suitcase, as well as a matching carry-on case, onto a
large metal examining table.
The space constraints of this statement prevent me from
chronicling the full extent of the abusive treatment to which I
was then subjected. In all, I was held in custody for almost an
hour. During that time, the officer laboriously searched my
luggage, going so far as to X-ray a double-sealed bottle of
Scotch I had purchased as a gift for my father at the duty-free
shop in Amsterdam. This search entailed the Customs officer
carefully scrutinizing virtually all of my possessions,
including clothing, shoes, toiletries, medicines, vitamins, a
book, magazines, a camera--even children's T-shirts I was
bringing as gifts for my nieces and nephew.
In addition, I was subjected to what I can only describe as
a humiliating interrogation in which I was ordered to chronicle
virtually every detail of my vacation. In addition, I was
ordered to produce for inspection all my hotel receipts, my
airline ticket receipt, and was ordered to recite for the
officer the name and address of the travel agent who had booked
the vacation. Moreover, the officer inquired whether I had ever
been searched before on my prior trips abroad; when I responded
that I had not, the officer exhibited an expression of dismay
and ordered me to specify what airports I had traveled through
in the past. When I responded that my prior trips overseas had
been through JFK airport in New York, the officer responded,
``Are you sure you've never been searched before?''--to which I
responded that I had not been searched before, to which she yet
again asked, ``Are you sure?''--to which, yet again, I
responded that I had not been searched before.
After completing the search of my carry-on bag and finding
nothing suspicious, after nearly having completed the search of
my checked suitcase and finding nothing suspicious, after
conducting the aforementioned interrogation, and even after
having been apprised that I was an attorney who worked for a
federal agency, the Customs officer informed me in no uncertain
terms that I was a suspected drug smuggler. (The officer
stated, ``Do you know what I'm looking for? Tell me what I'm
looking for . . . I'm looking for drugs. Am I gonna find
drugs?'')
Finally, I was ordered to produce a business card or some
other form of professional identification. I provided the
officer with my bar association identification card, which she
carefully analyzed. The officer took the ID card and my
passport to a telephone in another part of the room and
conducted an extended telephone conversation while I remained
in custody. After approximately 10-15 minutes, the officer
returned, stated that I had been to a ``source city,'' gave no
other explanation for the treatment to which I had been
subjected, told me I could leave and directed me toward the
Northwest terminal. As I exited, I noted that all the other
passengers were gone from the luggage arrival/Customs area, and
that I had been held in custody for close to an hour. While I
was held in custody, I noticed only one other person in the
``secondary search area,'' a bearded, olive-complexioned man
who appeared to be approximately 40 years of age. That
individual was released after 5-10 minutes. I did not observe
in the secondary search area the blonde-haired woman I had
previously witnessed being lunged at by the drug detection dog.
The leading judicial decision addressing the Constitutional
limitations on Customs' search and seizure authority is United
States v. Montoya de Hernandez, 473 U.S. 531 (1985). That case
involved an individual convicted of attempted smuggling of
narcotics into the United States through the use of an
alimentary canal ``balloon'' device. However, the case is
instructive regarding border searches generally. The Montoya
decision held that under the Fourth Amendment's search and
seizure clause, ``routine searches'' of persons and effects at
border entrances are not subject to any requirement of
reasonable suspicion, probable cause, or warrant. However, the
decision held that the detention of a traveler at a border
beyond the scope of a ``routine search'' and inspection is
justified only if the Customs officer reasonably suspects that
the traveler is smuggling contraband. The Court defined
``reasonable suspicion'' as a ``particularized and objective
basis for suspecting the particular person'' of smuggling.
Thus, the Court made clear in Montoya that for any search
beyond that of a ``routine'' search, there must be reasonable
suspicion--an objective standard requiring particularized,
articulable facts; the officer's subjective impressions, or
``gut feelings,'' are insufficient to justify any search beyond
that which is ``routine.''
The majority opinion in Montoya did not define the phrase
``routine search.'' Justice Brennan's opinion, while dissenting
with respect to other issues in the case, was in concurrence,
in effect, with respect to the majority's view that no
reasonable suspicion (or greater standard) is required to
conduct ``routine'' searches at international borders. His
opinion indicated that routine searches are ``typically
conducted on all incoming travelers'' (emphasis added).
Moreover, the opinion indicates that reasonable suspicion is
required for individual travelers to be ``singled out'' for
further investigation.
In the case of United States v. Martinez-Fuerte, 428 U.S.
543 (1976), the Court discussed the phrase ``routine search''
in the context of vehicle searches for illegal aliens near the
Mexican border. There, the Court noted that the Fourth
Amendment's limitation on search and seizure power is intended
to prevent ``arbitrary and oppressive'' police tactics. The
Court upheld the validity of checkpoint vehicle searches based
on a ``routine search'' rationale. In its decision, however,
the Court placed great emphasis on the fact that the checkpoint
searches were non-discretionary (i.e., all vehicles passing
through the checkpoint were included) and that all the searches
(including those involving secondary search procedures) were
extremely brief in nature. The Court noted that another type of
vehicle search for illegal aliens, known as ``roving-patrols,''
which, unlike the checkpoint searches, are discretionary in
nature, can only be undertaken when the stopping officer is
aware of specific, articulable facts, when taken with rational
inferences, would reasonably warrant suspicion that the vehicle
contained illegal aliens.
Thus, the Court's decisions make clear that a routine
border search is characterized by two primary elements: (1) it
must be brief in nature; and (2) it must be non-discretionary,
i.e., it must be based on procedures to which all similarly-
situated persons are subjected (be they all passengers
disembarking from an airplane, or all motorists passing the
same checkpoint along a highway). Any search that does not meet
the definition of a routine search may only be conducted based
on reasonable suspicion-a standard requiring that there be
objective, articulable facts suggesting the individual may be
in violation of law.
Montoya de Hernandez was a Fourth Amendment search and
seizure case. The essence of such a case is evidentiary in
nature-that is, the court is exploring whether, under the
Exclusionary Rule, evidence must be suppressed because law
enforcement officials violated the Fourth Amendment's
requirement that searches and seizures be conducted in a
reasonable manner. A ruling that a particular police practice
does not offend the Fourth Amendment means only that, within
the context of a criminal proceeding, the government will be
permitted to introduce the seized evidence and use it against
the accused. The ruling does not necessarily imply that a
particular police practice is otherwise legal when viewed in
the context of other Constitutional requirements, outside the
limited issue of what is admissible in a criminal proceeding.
In other words, the fact that a government agency is in
compliance with one provision of the Constitution does not give
the agency license to violate other provisions of the
Constitution.
It is well settled that the Fifth Amendment requires the
federal government to accord equal protection of law to all
citizens. (As it is frequently conceptualized, the Due Process
clause of the Fifth Amendment ``incorporates'' the equal
protection doctrine of the 14th Amendment applicable to the
states). Likewise, it is well settled that discriminatory
practices based on racial criteria are subject to the most
rigid scrutiny and are only allowed when there is a compelling
governmental interest and the discriminatory practice is
necessary to the accomplishment of a legitimate purpose
rationally related to that compelling interest. In addition,
the Court has held that while the burden is on the individual
alleging unlawful discrimination to demonstrate that the
governmental action had a racially discriminatory purpose, such
may be demonstrated by showing that the totality of the
relevant facts gives rise to an inference of purposeful
discrimination, and that under some circumstances, unlawful
discrimination may be demonstrated where the discrimination is
very difficult to explain on non-racial grounds. In this
regard, an individual need not show that other members of the
same racial group were similarly treated; a single
discriminatory governmental act violates the Constitutional
requirement of equal protection. Moreover, once an individual
has made the requisite showing of racial discrimination, the
burden shifts to the government agency to profer a race-neutral
explanation for the complained of actions; general assertions
that its officials did not discriminate or that they properly
performed their official duties do not satisfy the agency's
burden. See Batson v. Kentucky, 476 U.S. 79 (1986).
In short, the Customs Service, as a federal agency, is
required to comply with both the Fourth Amendment and the Fifth
Amendment; it may not subject members of the public to
unreasonable searches or to treatment that is arbitrary and
oppressive and, at the same time, it may not engage in racially
discriminatory practices. While the Court in Montoya indicated
that Customs could perform routine searches without any
reasonable suspicion or probable cause, nothing in the Court's
decision indicated, either expressly or by implication, that
Customs could exercise this authority in a racially
discriminatory manner, that the Custom Service, alone among
federal agencies, is excused from the Fifth Amendment's
requirement of equal protection, or that individual Customs
officers are at liberty to perpetrate racist, anti-Semitic, or
other unlawful discrimination.
Following the incident described above concerning my return
to the United States from an overseas trip, I reported the
incident to the Customs Service, asked for an investigation
into the matter, and posed a number of questions with respect
to the agency's interpretation of its legal authority, as well
as questions concerning the legal obligations of arriving
passengers. Among other points of inquiry, I asked whether the
Customs Service had determined that federal law permits Customs
officers to subject persons entering the country at
international airports to discriminatory treatment on account
of such person's race, religion, ethnicity, or national origin.
Although most people would assume that in the United States,
the answer to such a question would be self-evident, the
response I received suggests that the Customs Service, as a
matter of law, does not consider itself constrained by the
Constitutional guarantee of equal protection.
My inquiry was addressed to the Chief Counsel of the
Customs Service, who responded, through the Associate Chief
Counsel for Enforcement, Steven L. Basha, that his ``office
does not provide legal opinions to the public.'' This response
is interesting in itself, since legal offices in federal
agencies, in fact, routinely provide advisory and
interpretative legal opinions to members of the public
concerning matters that are under the purview of their agency.
Mr. Basha indicated that my inquiries were being forwarded to
the office of the Assistant Commissioner for Field Operations,
which would respond to me directly. With respect to my
inquiries, he indicated only that searches ``based upon race or
ethnicity are not permitted by Customs policy'' (emphasis
added). Nowhere in the letter did Mr. Basha indicate that such
discrimination is against the law, only that it violates
Customs ``policy.''
Several months after sending the agency my inquiry, I
received a response from John B. McGowan, Director, Passenger
Operations, Office of Field Operations. Of the eight questions
I posed in my correspondence, Mr. McGowan's letter was
responsive to only one, that is, whether racial/ethnic
discrimination is permitted by Customs policy. To this, Mr.
McGowan indicated only that a ``person's race and ethnic
background are not part of the decision process.'' Again,
nothing in the letter states that the Customs Service considers
racial/ethnic discrimination to be illegal-only that it
violates the agency's ``policy.''
It is disturbing, to say the least, that in the year 1999,
decades after most Americans had assumed it was a long settled
matter that it is illegal for employees of a government agency
to engage in racial and ethnic discrimination, that two senior
officials of a federal agency, when given the opportunity to do
so, specifically decline to state that it is a violation of law
for employees of their agency to perpetrate such
discrimination. With respect to explaining why I, alone among
400 some-odd passengers on the flight, was held prisoner for
almost an hour, subjected to abusive treatment, and informed by
a Customs officer in no uncertain terms that I was a suspected
drug smuggler, Mr. McGowan offered only that I was selected
based ``on the fact that [I was] arriving from a source city,
Amsterdam.'' The statement is fascinating more for what is does
not say than for what it does say. It does not say I was
selected for such treatment because I was arriving from a
source city plus some other specified factor; or that I was
selected for such treatment because I was arriving from a
source city plus some other factor which they decline to
specify for law enforcement reasons. Instead, it says only that
I was selected for such treatment merely because I was arriving
from a source city, period. The letter does not even pretend
that there was anything to distinguish me from any other person
who got off that airplane-other than my ethnic background.
As the Supreme Court has observed, discrimination may be
demonstrated where the discrimination is very difficult to
explain on other grounds. In this respect, Mr. McGowan's
acknowledgment that the treatment to which I was subjected was
based merely on a single factor which applied equally to every
person on the plane (i.e., that I was arriving from a source
city) constitutes an implicit acknowledgment of discrimination
based on ethnicity. I wish this were not so, as I have managed
to live for 37 years without ever making such an accusation
against anyone, let alone a federal law enforcement officer.
Indeed, I would have been vastly relieved if the Customs
Service had proffered some explanation-any explanation-that
would reasonably suggest that the treatment to which I was
subjected was not based on my ethnic background. However, given
a full and fair opportunity to do so, the agency has declined
to even pretend that there was anything other than my ethnic
background that distinguished me from the other passengers on
that airplane. I turn now to what may, perhaps, be the most
distressing aspect of this entire affair. I am, of course,
referring to the fact that while I-who proceeded past a drug
detection dog without incident-was subjected to discriminatory
and abusive treatment, a pale-complexioned, ``Aryan'' person
who had been lunged at by a drug detection dog was permitted to
proceed through the Customs process without being subjected to
even some, much less all, of the humiliating treatment to which
I was subjected. Of all the facts of this case, this by itself
would be more than adequate to establish not only a case of
ethnic discrimination, but a particularly stark and disturbing
example of such. (On this point, the response I received from
Mr. McGowan stated that the canine enforcement officer in the
jetway indicated nothing unusual and had made no record of an
alert on a passenger. This statement merely underscores the
self-evident proposition that persons engaged in improper
conduct generally do not keep written records of such improper
conduct, and that law enforcement officers who perpetrate
racial, anti-Semitic, or other illegal discrimination are not
likely to make an official report of that fact.)
Mr. McGowan's letter also stated that, ``You underwent
extensive questioning and review of travel and other documents
in order to verify that you were law abiding.'' This statement,
perhaps more than any other in the letter, summarizes the
problem with the current practices of this agency, and
highlights the racial and ethnic bigotry that is being
perpetrated. I was required to verify that I was law abiding.
White, Gentile persons-even those who are lunged at by drug
detection dogs-are not required to verify they are law abiding;
they are presumed to be law abiding. Blacks, Jews, Hispanics,
and other minority members are accorded no such presumption; we
are required to prove that we are worthy of being allowed to
re-enter the country, where no such proof is required of White,
Gentile persons.
In fact, the current practices of the Customs Service are
in violation of both the Fourth and Fifth Amendments of the
Constitution. In Montoya de Hernandez, the Supreme Court held
that Customs may perform routine searches in the absence of any
objective evidentiary standard (e.g., reasonable suspicion or
probable cause). Montoya was decided at a time when the routine
Customs practice was to engage in brief baggage searches of all
returning passengers; indeed, Justice Brennan's opinion in
Montoya emphasized that such searches are ``typically conducted
on all incoming travelers'' (emphasis added); he went on to
note that reasonable suspicion is required for individual
travelers to be ``singled out'' for further investigation. In
upholding the authority to engage in routine searches, the
Court almost certainly had in mind the routine searches of the
time-searches that were brief and non-discretionary-searches
that all arriving passengers were required to undergo.
The current practices of the Customs Service are markedly
inconsistent with this standard. According to the agency
itself, fewer than two percent of airline passengers who pass
through Customs are subjected to baggage search. On the flight
on which I arrived, the percentage was even lower-just two
persons out of approximately 400 on a nearly-full Boeing 747.
Under the Court's rulings-indeed, under the very definition of
the word-a search is not routine if only two percent of
passengers are affected. Searches conducted without reasonable
suspicion that involve only two percent of passengers are
precisely the type of arbitrary police behavior that the Court
has held to be in violation of the Fourth Amendment.
The fact that members of racial and ethnic minority groups
are overwhelmingly the victims of such unlawful tactics attests
to the fact that Customs-not content with merely violating one
provision of the Bill of Rights-is engaged in widespread
violation of yet a second Constitutional guarantee-that the
government is required to accord all persons equal protection
of law. Instead, the Customs Service is permitting its officers
to subject citizens of this country to discriminatory treatment
based on racist, anti-Semitic, and other forms of bigotry-
discriminatory treatment being perpetrated with the imprimatur
of the United States government. The draft legislation I have
outlined below seeks to remedy this shameful practice.
The proposed legislation which follows is based on my
experience as a former military attorney. As a Navy prosecutor,
I represented the government in several drug-related cases, and
I was responsible for sending to prison individuals who were in
violation of federal drug laws. I was very proud to wear the
uniform of this country's Armed Forces, and I was very proud of
the service I performed in helping rid the Navy of drug
offenders. In my experience, the military has by far the most
successful anti-drug program in this country. One of the
reasons the military's anti-drug program is so successful is
that the program is designed to prevent-in practice as well as
word-precisely the sort of arbitrary and discriminatory
practices that are currently permitted by Customs Service
policy. The people who lead our Armed Forces understand
something that the Customs Service does not understand: namely,
that to successfully wage any war, be it a war against an armed
enemy, or a war on drugs, it is of vital importance to maintain
not only public support for the war effort, but also the
support of the very troops who are waging the war-and that such
support will not be forthcoming if the war is perceived as no
more than a pretext for perpetrating racist and ethnic
discrimination.
Department of Defense policy (see DoD Directive 1010.1)
provides for nonconsensual urinalysis testing for drug use
under specifically-prescribed circumstances. The first of these
is when the testing is part of an inspection program. Such
urinalysis inspections fall into two sub-categories: unit
sweeps (where all members of a unit, or all members of a
defined sub-unit, are required to submit samples) and random
samplings (generally derived by randomly drawing a number, and
all unit members whose social security number ends in that
digit are required to provide a sample). Both forms of
inspection share the attribute of being non-discretionary in
nature-the decision that a particular person will be required
to provide a sample is based either on the draw of numbers, or
on the person's membership in a unit or sub-unit. An analogous
practice with respect to arriving passengers passing through
Customs would be conducting baggage searches of all arriving
passengers (or at the very least conducting searches based on a
genuinely random selection process).
The second circumstance in which a nonconsensual urinalysis
may be conducted is when there has been a search authorization
issued based on a finding of probable cause when there is
reasonable belief that the sample to be collected contains
evidence of illegal drug use. This is an objective standard
requiring specific, articulable facts indicating an illegal act
has occurred.
These are the only circumstances in which the military uses
nonconsensually obtained urine samples in a criminal proceeding
to form the prosecution's case in chief; samples obtained in a
manner not in conformity with these principles may be used in a
criminal proceeding only for impeachment or rebuttal.
(Urinalysis results obtained through neither a valid
inspection, nor through probable cause, may be used for other
non-criminal, administrative purposes-such as safety mishap
investigations and fitness for duty determinations-clearly not
analogous to Customs searches of arriving passengers.)
With this as background, I propose the following statute:
Section 1582 of Title 19 of the United States Code is amended
to read as follows:
(a) The Secretary of the Treasury may prescribe regulations
for the search of persons and baggage and is authorized to
employ female inspectors for the examination and search of
persons of their own sex; and all persons coming into the
United States from foreign countries shall be liable to
detention and search by authorized officers or agents of the
Government under such regulations, subject to the following
limitations.
(b)(1) The limitations described in subsections (b)(2)
through (b)(4) of this subsection shall apply to persons
arriving in the United States by way of any common carrier
transportation, including, but not limited to, commercial
passenger airline service and maritime passenger vessels.
(b)(2) Except as provided in subsections (b)(3) and (b)(4) of
this section, and notwithstanding any other provision of law,
the search and detention authority described in subsection (a)
of this section shall be exercised only in a non-discretionary
manner in which equivalent procedures relating to search,
detention, and all other matters pertaining to the processing
of persons described in subsection (b)(1) are applied uniformly
to all persons arriving in the United States on the same
airplane, maritime vessel, or other common carrier.
(b)(3) Disparate procedures of any sort, including, but not
limited to, those relating to search, detention, or
questioning, may be carried out only if there is reasonable
suspicion to believe that an individual passenger is in
violation of United States law. For purposes of this section,
the phrase ``disparate procedures'' shall mean any procedures
not applied uniformly to all persons arriving in the United
States on the same airplane, maritime vessel, or other common
carrier. The phrase ``reasonable suspicion'' shall mean a
particularized and objective basis for suspecting the
individual passenger of being in violation of United States
law.
(b)(4) No person entering the United States may be held in
detention in excess of six hours, or be subject to any search,
inspection, or viewing, by any means or device, of such
person's internal bodily cavities, genitalia, buttocks, rectum,
or, in the case of a female passenger, breasts, except when so
authorized by court order.
(b)(5) No person entering the United States may be held in
detention in excess of two hours without being afforded an
opportunity, at Government expense, to make a telephone call to
any person chosen by the detained passenger. The Government may
monitor such telephone calls, but the substance of such
communications will be admissible in any subsequent legal
proceeding only as allowed by the Federal Rules of Evidence. A
detained passenger shall be afforded an opportunity to make
such a telephone call at least once for each additional two-
hour increment in which the individual continues to be held in
detention.
This statute would, if enacted, require the Customs Service
to comply with the Constitution of the United States and the
decisions of the Supreme Court. Subsection (b)(2) makes clear
that searches may be conducted without any objective level of
suspicion only when conducted under ``routine'' circumstances,
and that such circumstances exist only when based on procedures
applied uniformly and in a non-discretionary manner. Subsection
(b)(3) makes clear, as the Supreme Court has held, that non-
routine search procedures may be utilized only when there is
reasonable suspicion that a violation of law has occurred. At
present, Customs is performing suspicionless searches on fewer
than two percent of arriving air passengers. Search procedures
applied to only two percent of passengers are clearly not
``routine.'' Although there do not appear to be published
statistics available with respect to baggage searches, Customs'
statistics indicate that during 1998, over 43 percent of
passengers subject to some form of body search were Black or
Hispanic. It is readily assumable that similar statistics are
true for passengers subject to suspicionless baggage search and
interrogation. When adding in Jews, Asians, Arab-Americans, and
other minority groups, it is clear that well over 50 percent of
persons subject to disparate procedures based on no objective
suspicion are minority members.
The prevalence of such discrimination is not difficult to
understand. Customs allows its officers to subject passengers
to disparate treatment based on a subjective standard, i.e.,
one that is based on what the individual officer, in his or her
own mind, without reference to any objective criteria,
considers to be suspicious. If the officer, in the recesses of
his mind, considers Blacks or Jews to be inherently suspicious,
the officer is permitted, notwithstanding the stated ``policy''
to the contrary, to subject the passenger to discriminatory and
abusive treatment-when, in fact, there is no objective
indication that the particular passenger is any less likely to
be a law abiding citizen than any of the White, Gentile
passengers.
The study of psychology teaches us that human beings, by
nature, tend to be suspicious of people who are different from
themselves. If this is true, as there appears to be empirical
reason to believe, then allowing the Customs Service to
continue to subject people to disparate treatment based on the
subjective biases of individual Customs officers is to ensure
that this agency, with the imprimatur of the United States
government, will continue to abuse and stigmatize citizens of
this country based on race, religion, ethnicity, and other
minority status. The proposed statute remedies this by
requiring that the agency only subject persons to disparate,
non-routine treatment when there is reasonable suspicion to
believe that a person has done something illegal. In essence,
it requires that the Customs Service accord Black people,
Jewish people, Hispanic people, and other minority members the
same presumption of innocence that is currently accorded White,
Gentile people.
The proposed statute is a reasonable balance between
legitimate law enforcement objectives and legitimate
Constitutional rights of individual passengers. It allows
Customs to continue to perform suspicionless searches, provided
they are performed in a uniform, non-discriminatory manner. The
agency has the flexibility to move resources, as it deems
necessary, to perform such suspicionless searches of all
passengers arriving from ``high risk'' areas, and it even has
the flexibility to determine which specific plane or ship
arrivals should be subject to more rigorous procedures. The
only thing the agency will no longer have the flexibility to do
is to subject people to racial, religious, and ethnic
discrimination. No agency of the United States government
should ever have flexibility of that sort.
Moreover, the proposed statute will almost certainly
increase the amount of seized narcotics and other contraband.
Last year, according to recent testimony by the Commissioner of
the Customs Service, of the 1.35 million pounds of narcotics
seized by Customs, only 5,000 pounds were seized from air
passengers; that represents less than one-half of one percent.
The reason for this abysmal record is easy to understand; it is
the result of conducting operations based on racial and ethnic
bigotry rather than on valid law enforcement methods. In fact,
Customs is catching only an infinitesimal amount of the
narcotics that are being smuggled into the country by air
passengers-the vast majority of which is being smuggled by
blonde-haired, blue-eyed people who are well aware of Customs'
discriminatory practices. Anyone who was in the Detroit airport
on October 30, 1998, as I was, and witnessed such a person
being lunged at by a drug detection dog and not being subjected
to even the most minimal search procedures, to which minority
members are routinely subjected, would have no difficulty
understanding the reason for Customs' appalling record. By
requiring all non-uniform searches to be based on reasonable
suspicion, the proposed statute will force Customs to develop
more effective detection and investigative techniques, thus
increasing the amount of seized narcotics.
Finally, subsections (b)(4) and (b)(5) seek to remedy the
most abusive of Customs' current practices by ensuring that no
person is subject to search of their intimate body parts except
when so authorized by a detached judicial officer, and by
ensuring that most fundamental of American rights-that no
person may be held incommunicado for an indefinitie period by
the police.
In summary, the proposed statute precludes the Customs
Service from subjecting persons to discriminatory treatment
based on the subjective impulses of its officers-a system which
has led to the current prevalence of racial and ethnic
discrimination. Instead, it establishes the principle that non-
uniform search procedures may be utilized only when an
objective standard of suspicion has been met. The Armed Forces
have long operated under such a principle, as discussed above;
indeed, the military, which runs by far the most successful
anti-drug program in the country, uses a ``probable cause''
standard for its discretionary drug testing intended for use in
the prosecution's case in chief. The proposed statute imposes
on Customs a lower objective standard, ``reasonable
suspicion.'' If our military leaders can run the Armed Forces
of this country using an objective standard for their anti-drug
program, there is no legitimate reason why a civilian agency
like Customs cannot run its search program using an objective
standard that accords to civilians the same rights that members
of the military have-to be free of abusive, arbitrary, and
discriminatory treatment.
In conclusion, I would like to thank the Chairman, the
Ranking Minority Member, and the other Members for holding
these very important hearings, and for allowing members of the
public the opportunity to express their views. If there are any
questions about this statement, I will be happy to provide any
additional information or be of any further assistance to the
Subcommittee.