October 31, 2013
By Elizabeth A Tennyson
Prominent members of the Senate have joined the chorus of voices demanding answers from Customs and Border Protection (CBP) and its parent agency, the U.S. Department of Homeland Security (DHS), about numerous stops and searches of law-abiding pilots on domestic general aviation flights.
In an Oct. 30 letter to DHS Acting Secretary Rand Beers, eight senators, all members of the General Aviation Caucus, raised concerns that the unwarranted stops of general aviation flights are a violation of pilots’ Fourth Amendment rights. The letter, spearheaded by Sen. Pat Roberts, R-Kan., and Sen. Jim Risch, R-Idaho, also demands that DHS provide records of all CBP stops of general aviation flights since 2009, including explanations of the “reasonable suspicion” that led to each stop and the “probable cause” that resulted in a search. Those records, the letter insists, should be made available no later than Nov. 15.
While the senators note that they respect CBP and DHS efforts to protect national interests, they add that, “…we wholly disagree with agents demanding access to search an aircraft without reasonable suspicion or probable cause that illegal activity is occurring.”
The letter follows months of AOPA attempts to get to the bottom of more than 40 reports of stops and searches by CBP or local law enforcement acting at the agency’s request. In each case CBP, which is charged with border security, stopped flights that never left the United States. Pilots report that several of the stops involved drawn weapons and the use of dogs, but in no case did CBP find evidence of criminal activity.
AOPA has filed numerous Freedom of Information Act requests in an attempt to determine under what authority the CBP is stopping purely domestic flights. The association brought the issue to the attention of lawmakers after its requests were ignored or received inadequate responses. The association was also told by a federal agency that in at least one case no record of a search existed although a local law enforcement agency involved was able to produce a record of the incident.
In September, AOPA member Rep. Sam Graves, R-Mo., co-chairman of the House GA Caucus, asked for an Inspector General investigation into the incidents. Later that month, two notices of proposed rulemaking (NPRMs) indicated that CBP wanted to change the status of some of its records, including those related to the stops, to make them secret and unavailable for public scrutiny. The timing of the request and the short period allowed for public comment raised alarm bells.
AOPA asked for an extension to the comment period to give Congress time to complete its investigation, but that request was ignored. It took DHS more than a month to respond to other AOPA questions about the NPRMs, including why CBP chose this time to make its Air and Marine Operations Surveillance System (AMOSS) records secret when the system has existed since 1988. That response was vague, citing national security and law enforcement concerns as the reasons for secrecy.
In addition to Sens. Roberts and Risch, the letter to DHS was signed by GA Caucus Co-Chairman Sen. Mike Johanns, R-Neb., and Sens. James Inhofe, R-Okla., John Boozman, R-Ark., Jerry Moran, R-Kan., Mike Crapo, R-Idaho, and David Vitter, R-La.
“We appreciate Sens. Roberts, Risch and their colleagues stepping forward to protect the Constitutional rights of pilots,” said AOPA General Counsel Ken Mead. “Without a reasonable suspicion of illegal activity, a warrant, or probable cause, law enforcement has no business stopping aircraft in the first place, let alone searching and possibly detaining law abiding pilots. We can’t afford to have law enforcement agencies that act outside the scope of their authority and then try to hide behind laws designed to protect our national security. They have to be accountable to the citizens they are supposed to serve and today’s action is one way to help ensure that accountability.”
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