Challenges of Defending Functional Equivalent Borders

Challenges of Defending Functional Equivalent Borders

Richard Hildreth

AMU Student # 4089144

HLSS 311- Border and Costal Security

Professor Justin Novak

Challenges of Defending Functional Equivalent Borders

As the nation’s frontline border security agency, the Customs and Border Protection or CBP is often known as our last line of defense in preventing terrorist and terrorist weapons from entering the United States.  At all Ports of Entry (POE) the CBP is tasked with facilitating legal entry of people and goods to the United States, while preventing illegal migration and the import of contraband items such as narcotics, exotic animals, weapons or any other of the thousands of prohibited items. These tasks often become more complex at Functional Equivalent Borders (FEB’s) such as International Airports because of the somewhat more harried pace and more complex partnerships. Although they are often overlooked in discussions concerning the securing of our borders, CBP operations at these FEB’s can be just as critical to national security as traditional land and maritime border entry points.

At any border crossing, Customs and Border Protection works with a variety of other agencies from public health to transportation officials.  At an International Airport, these same agencies are present, but the presence of traditional airport operations and contractors can add additional challenges. Unlike at a land crossing where a CBP officer has consistent control over the person crossing; there are many other factors that must be considered at international airports. At a land crossing, the arriving individual is usually in a vehicle along with their luggage and other items.  The person crossing and all of their items are not out of the custody of either the person crossing or the CBP officer. That is not the case when a passenger arrives on an international flight.  While the passenger is directed into an arrival hall where a CBP officer begins the processing of the individual, workers, who are employed by the airline, unload luggage and transport it from the aircraft to the Customs facility.  Although these workers have been screened and cleared prior to their employment in a customs area, they are not under the direct control of the CBP or their officers.  When you consider other airline, airport and contractor employees, it is not uncommon for more than fifty additional people to be working inside what would be considered the Functional Equivalent Border.

Although the term has never been clearly defined, Functional Equivalent Borders were established by the 1973 US Supreme Court decision, Almeida-Sanchez v. United States ¹. In this decision, The Supreme Court of the United States (SCOTUS) recognized that entry into the United States also occurs at locations other than traditional geographical border crossings. As such, certain exceptions to the 4^th Amendment protections provided at land border crossings should also extend to these locations ². For the purpose of this paper, the term Functional Equivalent Border shall be defined as an international point of entry located at an international airport. Additionally, this border area will include Customs secured areas, Airport Operations Areas (AOA) immediately adjacent to international gates and areas where passengers, luggage and cargo may be transferred from the aircraft to an inspection area. Because of this expanded area of control, it is much more difficult for CBP officers to monitor normal and threat specific operations. Since 9/11, these challenges have also been complicated by increased demand for homeland security and the restructuring of agencies as well as areas of responsibility.

The Homeland Security Act of 2002 (P.L. 107-296) consolidated many agencies previously dealing with border security into the Department of Homeland Security.  Most of these agencies now work under the Directorate of Border and Transportation Security or BTS.

Customs and Border Protection (CBP), Immigrations and Customs Enforcement (ICE) and the Transportation Security Administration (TSA) are all key components of BTS. Each agency has distinct roles and responsibilities but all are dedicated to protecting our citizens from terrorism. CBP serves as the primary law enforcement arm of DHS and its efforts are primarily focused at land, maritime and air points of entry ³.  ICE serves as an investigatory arm, handles alien detention and removal as well as some air/marine drug interdiction operations. TSA, which most people narrowly perceive as the agency responsible for airport checkpoints and aircraft security is tasked with securing all transportation systems and ensuring the free movement of people and commerce. There are other important interagency partnerships and interdisciplinary alliances found at border crossings that create a multi-layer border defense to protect security, health and economic interest of the United States.

            At most border crossings you will find customs and immigration officials.  Working alongside them you will find specialized CBP officers that are tasked with agricultural, revenue or homeland security roles. In some cases, CBP personnel will work with State Department, FBI or even CIA assets to prevent or track persons of interest entering the United States.  At International Airports, these partnerships can be even more critical as a result of the sometimes harried pace of operations and the increasing workloads as international trade and travel increase.  The CBP also works with the Center for Disease Control and other public health agencies to control the import of infectious disease. During global outbreaks and crises such as the H7N9 Avian Flu, Severe Acute Respiratory Syndrome (SARS) or Hemorrhagic Fever, CBE officers are often the first to spot potentially ill people and redirect them to health authorities.  In many airports, medical professionals with the CDC are co-located with other operations to provide additional screening.

At official ports of entry, the CBP is responsible for conducting immigrations, customs and agricultural inspections for anyone entering the United States. To streamline the border crossing process in 2003, former DHS Secretary Tom Ridge, created the “One Face at the Border” (OFAB) initiative ⁴. Under this initiative, CBP officers may be cross trained and combine Customs, Immigration and Agricultural functions. Although these officers will often maintain their specialized duties at International Airports, their knowledge and perspective is expanded by this cross training to better recognize potential areas of concern with incoming passengers or cargo. The result has been a multilayered team approach that has improved operations while also improving their primary mission, to protect the interest of the United States.

The process for identifying a suspected terrorist or other persons suspected of criminal activity begins long before that person arrives in the United States.  When a foreign national wants to visit or migrate to the United States, they work through the US State Department who is responsible for the issuance of Visa’s ⁵. During this process, certain information is noted that allows for the background of the applicant to be checked against certain lists of known or suspected terrorist or criminals. With many airlines, this visa information is electronically transmitted to officials at the point of arrival while the aircraft is in transit. This allows officers at the point of entry to look at issues such as Country of Origin, recent travel and other pertinent information that might help identify suspected terror suspects.

Upon arrival, CBP officers will match arriving passengers with that list and inspect documentation including Passports, Visas and other papers to ensure authenticity and adherence to US regulations and immigration laws. On average, the CBP identifies and makes 54 criminal arrests every day.  According to Terrance Drafts, the Acting CBP port director in Philadelphia, “Customs and Border Protection officers take great pride in identifying arriving and departing wanted persons at our international ports of entry, and returning them to our law enforcement partners to face justice ⁶.” 

As previously stated, CBP officers are not only on the front line protecting our nation from terrorist and criminals but also in protecting the US during Global Heath Crises.  The Department of Health and Human Services (DHHS), Center for Disease Control (CDC) and the Food and Drug Administration (FDA) all partner with border agencies to help stop the import of dangerous disease to the United States. With travelers arriving from almost every part of the world, a passenger who is ill with an infectious disease could spread that disease to fellow passengers or others at the airport. With those passengers then flying back out or using other means of travel this disease could then quickly be spread throughout the country ⁷. It should be noted that, as the number of international flights increase, so does the threat and work load of CBP officers. This is an area the United States cannot afford to fail..

Not all health issues are directly related to the passenger.  Agricultural inspections are made to halt the import of products that may be in violation of US plant and animal protection laws. This enforcement is not only to prevent the import of harmful pests, but also dangerous bacteria, chemicals and other health hazards.  Every year, officers from the CBP’s Agriculture Protection Program find and stop the import of tens of thousands of products containing “actionable pests” identified as dangerous to the health and safety of US Agricultural interest ⁸.  These include invasive species, insect larva, meat products and fruits and vegetable products containing dangerous chemicals or pest.  To accomplish this task, officers use specialized x-ray units capable of detecting organic materials and specially trained canines who sniff out contraband items.  Since 9/11 this threat has expanded from the unintentional import of items to the prevention of agro-terrorism by specifically importing items that could devastate US Agriculture.

The dog chosen as best suited to inspect luggage for food and agricultural products at International Airports is the beagle. Because of their acute sense of smell, their gentle demeanor and their natural love of food, beagles can easily walk among incoming passengers and luggage without raising any undue alarm.  If a dog identifies a subject or a suitcase possibly containing contraband items, it will quietly sit down next to that person or item.  This then provides the handler cause to follow up with questions and / or inspection of the suitcase ⁹. In an unpublished incident at SeaTac Airport in December of 2013, a member of the Beagle Patrol discovered an almost complete swine carcass being transported from China ¹⁰.  In that case, the carcass was wrapped tightly in plastic and scented to throw off CBP personnel and animals.  No motive for the concealed import was given at the time of this article. These specially trained animals can identify concealed items an estimated 80% of the time with that rate rising to 90% or above as they gain experience ¹¹.

Plant and Animal products are not the only contraband discovered at International Airports. Narcotics, ivory, technology and weapons are among items discovered every day by CBP and TSA officers at FEB checkpoints. Additionally, CBP officers may work with other agencies to identify and arrest persons suspected of illegal export of items. In June of 2013, the ring leader of a group who was exporting firearms parts to Thailand was arrested at SeaTac Airport ¹².

In February 2013, CBP officers seized 24 pounds of liquid cocaine smuggled in small cosmetic containers ¹³. According to a 2011 Freedom of Information Request published by governmentattic.org, over 4000 items ranging from cocaine to pornographic materials were seized at Dulles International Airport alone between 2003 and September 2011 ¹⁴. Included in that list were counterfeit items ranging from Rolex watches to counterfeit US currency.

International arrivals of passenger aircraft are not the only responsibility of Customs and Border Protection Officers stationed at International Airports. They are also tasked with the inspection of cargo, both in conjunction with passenger aircraft and cargo only aircraft, as well as passengers and cargo of private aircraft. As such, the CBP has taken steps to toughen General Aviation (GA) requirements and minimize vulnerability gaps that could allow private aircraft to transport illicit materials, dangerous individuals or to be used as weapons in terrorist attacks. Consistent with commercial aviation requirements, new rules now require advanced identification and screening of passengers and crews as well as inspections of cargo. These new rules now require CBP to be notified with all appropriate information at least 60 minutes prior to departure of that aircraft from its point of origin.  Previous rules only required this notification 60 minutes prior to arrival ¹⁵.

With inbound air cargo, both Customs and Border Protection and Transportation Security Administration have significant responsibility.  TSA is tasked with securing US bound flights from destruction or hijacking while CBP is responsible for ensuring that illicit materials including drugs, explosives and other weapons of terror are not included in the cargo ¹⁶. Specifically, CBP inspects inbound cargo to ensure compliance with all appropriate laws and does not pose a security, economic or health risk to the United States. This inspection may include close scrutiny of documents and other information on cargo being shipped and physical inspection of all cargo upon its arrival. Due to budgetary and manpower restrictions, currently only a small percentage of cargo is inspected either at point of origin or upon arrival ¹⁷.

Both CBP and TSA have taken steps to work together to close gaps and to target higher risk cargo and points of origin.  Because DHS has determined the exact percentage of cargo screened or inspected to be Sensitive Security Information (SSI), those figures will not be provided in this open source briefing. The same SSI restrictions also apply to the types of cargo that is targeted or points of origin information.  What can be included in this briefing is that both CBP and TSA have taken appropriate preliminary steps to ensure Homeland Security. It can also be stated that strategic planning has these steps being accelerated as additional resources become available.  It should be noted that both CBP and TSA have established effective working relationships between agencies and with many domestic and foreign air carriers.

The CBP has taken significant steps to close security and efficiency gaps at International Airports.  Through applications of technology, prescreening of frequent travelers through the Global Entry program and use of a multi layered operational approach that includes specialized teams; the CBP has increased efficiency without sacrificing security.  Currently, five US airports have installed kiosks in International Arrival areas that allow US passport holders and Canadian visitors to input answers to questions previously asked by CBP officers, verify Passport information and then have a receipt printed out with the information and their picture.  This receipt is then reviewed by CBP officers, matched with the traveler and in most cases the time and personnel involved has been reduced by half ¹⁸.  With the ever increasing number of international passengers entering the United States, coupled with demands for ever more vigilant border security, it is critical that Customs and Border Protection continue to expand and train to meet new challenges.  As outlined by the December 2011 GAO report on Border Security, additional steps are still needed; however the CBP has risen to meet many of those challenges already and can meet the remaining items with appropriate funding ¹⁹.  The CBP’s mission is to safeguard America’s homeland, protect American citizens from acts of terrorism and enforce the laws of the United States of America. 

We proudly do this with vigilance, integrity and professionalism and with an understanding that we are on the front lines of the Global War on Terror.

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