SPECIAL ABA COMMITTEE REPORT

THE CANADA-U.S. BORDER: BALANCING TRADE, SECURITY AND MIGRANT RIGHTS IN THE POST-9/11 ERA

ABA IMMIGRATION AND NATIONALITY COMMITTEE, INTERNATIONAL LAW SECTION

PREFACE

I. INTRODUCTION

II. THE CANADA-U.S. BORDER PRIOR TO 9/11A. Border CommunitiesB. Economic InterdependenceC. Pre-September 11th Joint Initiatives on Border Security

III. SEPTEMBER 11, 2001 AND ITS AFTERMATHA. The U.S. ResponseB. The Canadian ResponseC. Specific Programs and Initiatives: Post 9/11 Efforts to Ensure a Secure Border

IV. HUMANITARIAN ISSUES RELATED TO THE CANADA-U.S. BORDER IN THE POST-9/11 ERAA. Safe Third Country Asylum AgreementB. Special RegistrationC. Extraordinary Rendition: The Case of Canadian Citizen Maher Arar

V. FINDINGS

PREFACEIn early 2002, I sent the late Arthur Helton a report that my agency, the Catholic Legal

Immigration Network, Inc. (CLINIC), had recently completed on the U.S.-Mexico border. I had just replaced Arthur as co-chair of the Immigration and Nationality Committee of the American Bar Association’s (ABA) International Law Section. Wasting no time, Arthur suggested that we needed to shift our attention to the Canada-U.S. border. The U.S. northern border, he said, offered the perfect locus to study the interplay between security, free trade, and migrant rights in the post-September 11th world. Nobody ever accused Arthur of thinking on a small scale and, characteristically, his idea was difficult to resist. In short order, the Section approved the project and the Washington, D.C. law firm of Hogan & Hartson offered pro bono support. The Paul D.

This Report was written by Donald Kerwin, Chair of the ABA Immigration and Nationality Committee, with Elizabeth Baltzan, Haley Boyette, Deen Kaplan, Helaine Perlman, Elizabeth Speck, and Jonathan Stoel of Hogan & Hartson LLP.

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Schurgot Foundation, Inc. subsequently agreed to provide important financial backing.

The ABA Committee envisioned a fairly straightforward process of three-fact finding visits, research, and a report. The report, we hoped, would provide a snapshot of the Canada-U.S. border at a time of significant transition and challenge, and describe how the two nations were balancing security, trade and human migration. The Committee chose three bi-national communities for its site visits: Fort Erie, Ontario and Buffalo, New York; Windsor, Ontario and Detroit, Michigan; Vancouver, British Columbia and Blaine, Washington. These communities include the two largest, bi-national communities along the Canada-U.S. border, and a more rural, albeit crucial, passageway that terrorists had already attempted to breach. The Committee wanted to observe first-hand the interconnectedness of life along the border, as well as the effects of post-9/11 security initiatives. Each visit included discussions with U.S. and Canadian officials, tours of border facilities, demonstrations of new technologies, interviews with immigrant rights agencies, and meetings with other border stakeholders.

The site visit to Buffalo-Fort Erie—which was arranged by Ellen Yost, an ABA Committee member with the law firm of Fragomen, Del Rey & Bernsen—took place on May 21 and 22, 2003. The delegation met with a number of former Immigration and Naturalization Service (INS) and U.S. Customs officials, who had been incorporated into the new U.S. Department of Homeland Security (DHS) just two months earlier. These officials included: Kerry Freiling, Customs and Border Protection (CBP) Assistant Director for Immigration Policy; Keith Konopa, DHS Operations Specialist; Madeleine Rowland, Assistant Director for Operations, Buffalo Field Office; Jack Moscarella, an Operations Specialist; and Kathy Howard, an Operations Specialist, and an official who asked to remain anonymous. The delegation also met with Catherine Kerr, who chaired the Cross-Border Mobility Committee for the U.S. Chamber of Commerce in Canada, and Pat Warren, a prominent businessman and a board member of the Canadian/American Border Trade Alliance. The group interviewed, via telephone, George Haynal, Senior Vice President of the Canadian Council of Chief Executives and former Canadian Consul General in New York. Catherine Kerr, a Canadian barrister and solicitor, participated in this part of the delegation’s visit. Finally, the group spoke with Molly Short, legal supervisor of VIVE, Inc., a non-profit shelter and legal service provider for persons seeking political asylum in Canada and the United States. It also toured the VIVE, Inc. facility and met with staff.

A Committee delegation visited Detroit, Michigan on June 24 and 25, 2003. In Detroit, the delegation toured Freedom House, a non-profit organization located near the Ambassador Bridge that provides shelter, legal and other services to refugees seeking political asylum in the United States or Canada. At this stop, the delegation met with David Koelsch, the lead attorney at Freedom House, his staff, and Viviana Lande, director of the Archdiocese of Detroit’s Immigration Legal Services office. The delegation interviewed Philippe Lupul, Consul and Immigration Program Manager, Canadian Consulate in Detroit, and Kevin Weeks, CBP Director of Field Operations in Detroit, and select DHS staff. The group also briefly met with a representative from the Detroit Chamber of Commerce. Scott Cooper, a Troy, Michigan attorney with Fragomen, Del Rey & Bernsen, helped to organize this trip.

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On October 23, 2003, a Committee delegation traveled to Blaine, Washington where it met with DHS officials including: Margaret Fearon, CBP Area Port Director; Phillip Stanford, CBP Chief Inspector, Passenger Operations; Bruce Bruner, legacy INS port director; and Jerry Jensen, CBP Assistant Area Port Director, Passengers/Enforcement. In a separate meeting, the delegation spoke with Border Patrol officials, including Joseph Giuliano, Assistant Chief Patrol Agent. On the Canadian side of the border, the group met with Citizenship and Immigration officials, including: Norman Hopkins, Program Specialist for the British Columbia/Yukon Region; Carol Young, Director of Operations; and Bev Steeves, Supervisor at the Port of Entry.

Beyond those interviewed in the three bi-national communities, the Canada-U.S. Border Project owes a particular debt of gratitude to: William J. Butler of the Paul D. Schurgot Foundation; ABA committee member Ellen Yost; Hogan & Hartson attorneys Elizabeth Baltzan, Haley Boyette, Deen Kaplan, Helaine Perlman, Elizabeth Speck, and Jonathan Stoel; and my ABA committee co-chairs Michael Turansick and Gabrielle Buckley. The Report was written by me and the Hogan & Hartson attorneys. Deborah Myers, an expert on the Canada-U.S. border at the Migration Policy Institute in Washington, D.C., generously reviewed the Report. Above all, the Committee wishes to honor Arthur Helton, who died as he lived, in service to others, in the August 19, 2003 bombing of the U.N. headquarters in Baghdad. May we continue to follow Arthur’s lead and inspiration for years to come.

Donald KerwinABA Immigration and Nationality CommitteeInternational Law Section

I. INTRODUCTION

Shortly after the September 11, 2001, terrorist attacks, U.S. land ports-of-entry effectively closed. Delays averaged 12 hours.1 Truck lines at the Ambassador Bridge in Detroit, Michigan, the busiest truck crossing in North America, stretched for miles.2 By September 14th, U.S. car assembly plants—which depend on receiving parts “just in time” from Canadian manufacturers—began to shut down, costing millions of dollars in lost wages and revenue.3

In the aftermath of the attacks, the world’s “longest, unprotected border,” long a symbol of pride and partnership, suddenly seemed a source of vulnerability.4 Initial reports that the

1Improved Border Security Through Integrated Operations; Hearing Before the House Select Comm. on Homeland Security, Subcomm. on Infrastructure and Border Sec.,108th Cong. (2003) (testimony of Robert C. Bonner, U.S. Bureau of Customs and Border Protection) hereinafter Bonner Testimony.2 Jerry Seper, America’s Open Border, WASH. TIMES, Dec. 8, 2003, at A14 hereinafter America’s Open Border.3Bonner Testimony, supra note 1.4While significant attention has been paid to the risk of further terrorist attacks against the United States, Osama bin Laden has twice threatened Canada, and some experts believe that a terrorist attack against Canada is inevitable. Bertrand Marotte, Lloyd’s Warns Canada At Risk of

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September 11th terrorists had entered the United States from Canada proved erroneous, but terrorists had crossed the border in the previous years.5 In December 1999, U.S. officials caught Ahmed Ressam, an Algerian national and member of the Montreal cell of the Armed Islamic Group, at Port Angeles in Washington State, with his car trunk filled with explosives. 6 Ressam, the so-called “millennium bomber,” had planned to attack Los Angeles International Airport on New Year’s Day, 2000.

Abu Mezer was arrested three times in Washington State and ultimately captured in Brooklyn, New York with pipe bombs that he planned to detonate in a suicide attack in the New York subway system.7 Nabil Al-Marabh, a Kuwaiti national who lived in the United States and Canada from 1989 onwards, shared a phone number with two of the September 11 th terrorists.8

He was arrested in Chicago. These cases exposed the vulnerabilities of each nation’s counter-terrorism defenses.

The presence of terrorist groups in Canada has been of longstanding concern to the Canadian government. As the Canadian Security Intelligence Service puts it: “With the possible exception of the United States, there are more international terrorist organizations active in Canada than anywhere in the world. This situation can be attributed to Canada’s proximity to the United States which currently is the principal target of terrorist groups operating internationally; and to the fact that Canada, a country built upon immigration, represents a microcosm of the world.”9 Abderraouf Jdey, a Tunisian al Qaeda operative who lived in Montreal, appeared in a martyrdom video in Afghanistan.10 He had been trained to participate in a U.S. hijacking, either September 11th or a subsequent attack.11 In May 2004, former U.S. Attorney General John Ashcroft, and Federal Bureau of Investigation (FBI) Director Robert Mueller, solicited the public’s help in locating Jdey and Amer El-Maati, a second al Qaeda operative with Canadian citizenship.12 El-Maati, a licensed pilot of Egyptian or Syrian origin,

Terrorism, GLOBE & MAIL (Toronto, Can.), May 18, 2004, at B4; see also Adam Segal, Canada Will Be An Al Qaeda Target: Terror Expert, CANADIAN JEWISH NEWS, June 17, 2004, available at http://www.cjnews.com/viewarticle.asp?id=3393&s=1 (last visited Feb. 8, 2005).5America’s Open Border, supra note 2.6Id. 7Id. 8James Neff et. al, Few Resources Spent Guarding Canada Border, SEATTLE TIMES, Sept. 23, 2001, at A1. 9CANADIAN SECURITY INTELLIGENCE SERVICE, GOV’T OF CANADA, OPERATIONAL PROGRAMS: COUNTER-TERRORISM (revised Aug. 9, 2002), at http://www.csis-scrs.gc.ca/eng/operat/ct_e.html (last visited Nov. 29, 2004).10Andrew Metz, Terrorists In Transit Force New Look At Canadian Border, NEWSDAY, Feb. 24, 2002, at A5; U.S. Identifies 2 More Terror Suspects, ASSOCIATED PRESS ONLINE, Jan. 25, 2002. 11THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 235 (2004), available at http://www.9-11commission.gov/report/911Report.pdf hereinafter THE 9/11 COMMISSION REPORT. 12Transcript: Ashcroft, Mueller Discuss Terrorist Threat, WASHINGTONPOST.COM (May 26, 2004), at http://www.washingtonpost.com/wp-dyn/articles/A57673-2004May26.html (last

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allegedly discussed hijacking a plane in Canada and crashing it into a U.S. building.13

The Canada-U.S. border extends 5,525 miles and has 84 land ports-of-entry.14 In 2001, only 369 U.S. Border Patrol agents (roughly 4 percent of the total) covered this massive area.15

In 2000, the Office of the Inspector General (OIG) of the U.S. Department of Justice (DOJ) concluded that the Border Patrol could not quantify the drug or human smuggling problem across the border.16 The OIG found that smuggling rings listened to non-secure Border Patrol radio communications and waited to cross after agents went off duty.17 In one 300-mile stretch, OIG identified 65 smuggling routes.18 The report also found that agents on the U.S.-Canada border were more likely to encounter weapon and drug smuggling than those on the U.S.-Mexico border.19 Most low-volume ports-of-entry between Canada and the United States went unstaffed—protected only by “an orange cone in the road”—during off-hours.20 This approach contrasted sharply with border control on the U.S.-Mexico border. As the U.S. “9/11 Commission” reported, by 1999 one U.S. Border Patrol agent had been hired for every quarter mile of the U.S.-Mexico border, compared to one every 13.25 miles on the U.S.-Canada border.21

Set against these security concerns, the volume of commercial and personal traffic across the border precludes policies that would result in measurably longer crossing times. In 2003, two-way trade between the United States and Canada exceeded $372 billion, with the Ambassador Bridge (between Detroit, Michigan and Windsor, Ontario) transporting more than $120 billion in goods.22 Roughly 82 percent of Canadian exports go to the United States and 19

visited Nov. 3, 2004) hereinafter Ashcroft, Mueller Discuss Terrorist Threat.13Id.14CONGRESSIONAL RESEARCH SERVICE, BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES, AND ISSUES 2 (May 26, 2004) hereinafter BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES.15OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF JUSTICE, FOLLOW UP REPORT ON BORDER PATROL’S EFFORTS TO IMPROVE NORTHERN BORDER SECURITY, Rpt. No. I-2002-004 (Feb. 2002), available at http://www.usdoj.gov/oig/inspection/INS/0204/final.pdf.16OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF JUSTICE, BORDER PATROL ALONG THE NORTHERN BORDER, Rpt. No. I-2000-04 (Feb. 2000), available at http://www.usdoj.gov/oig/inspection/INS/0004. 17Id.18Id. 19Id. 20Bonner Testimony, supra note 1. 21THE 9/11 COMMISSION REPORT, supra note 11, at 81:

Despite examples of terrorists entering from Canada, awareness of its more lenient immigration laws, and an inspector general’s report recommending that the Border Patrol develop a northern border strategy, the only positive step was that the number of Border Patrol agents was not cut any further.

22BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES, supra note 14, at 3. 5

percent of U.S. exports are sent to Canada.23 Thirty-nine U.S. states count Canada as their largest export market.24 In FY 2003, the United States conducted 428 million inspections for entry. 25

More than 11 million trucks, seven million shipping containers, and two million railroad cars enter the United States each year.26 In 2002, 32.5 million cars, 6.9 million freight trucks, and 1.8 million rail cars crossed from Canada to the United States.27

The two nations approached these challenges from the perspective of their long history of cooperation at the border. In December 2001, they agreed on a “smart border” declaration and 30-step action plan designed to increase security and facilitate the lawful flow of goods and people. The Smart Border agreement called for a variety of security-related initiatives, including: (1) expanded bi-national border enforcement teams; (2) coordination between national and local law enforcement on both sides of the border; (3) coordinated gathering and dissemination of intelligence information; (4) synchronized visa waiver programs; and (5) joint development of biometric identifiers for travel documents.28 Subsequently, Canada and the United States entered an Agreement for Cooperation in the Examination of Refugee Status claims from National of Third Countries (hereinafter the “Safe Third Country Asylum Agreement”). Under it, a migrant must apply for asylum in whichever country he or she first

23REBECCA JANNOL ET AL., U.S.-CANADA-MEXICO FACT SHEET ON TRADE AND MIGRATION (Migration Policy Institute Nov. 2003), available at http://www.migrationpolicy.org/pubs/US-Canada-Mexicofact%20sheet.pdf (last visited June 18, 2004) hereinafter U.S.-CANADA-MEXICO FACT SHEET.24 Website, U.S. Embassy (Ottawa, Canada), Basic Facts About Canada-U.S. Trade (Mar. 29, 2004), at http://www.usembassycanada.gov/content/textonly.asp?section=can_usa&subsection1=trade&document=econ2 (last visited June 28, 2004) hereinafter Basic Facts About Canada-U.S. Trade.25Website, U.S. Dep’t of Homeland Security, Immigration Information: Inspections, available at http://uscis.gov/graphics/shared/aboutus/statistics/msrsep03/INSP.HTM (last visited June 25, 2004).26 Arshad Mohammed, Bush Seeks Extra $2.1 Billion to Protect Borders, REUTERS, Jan. 25, 2002; see also Website, Center for Arms Control and Non-Proliferation, Fact Sheet: U.S. Border Security and WMD (Sept. 12, 2003), available at http://64.177.207.201/pages/16_405.html (last visited May 3, 2004).27 BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES, supra note 14, at 21.28 News Release, Citizenship & Immigration Canada, Gov’t of Canada, Backgrounder: Joint Statement on Cooperation on Border Security and Regional Migration Issues (Dec. 3, 2001), available at http://www.cic.gc.ca/english/press/01/0126-pre.html (last visited June 29, 2004) hereinafter Canada-U.S. Joint Statement on Cooperation on Border Security. The 30-step action plan also calls for: pre-clearance programs, inspection where cargo is loaded, joint passenger analysis teams, development of secure cards with biometric identifiers, a safe third country asylum agreement, infrastructure improvements, shared intelligence, and expanded joint enforcement activities. News Release, Canadian Embassy (Washington, D.C.), Gov’t of Canada, Action Plan for Creating a Secure and Smart Border (Feb. 11, 2003), available at http://www.canadianembassy.org/border/actionplan-en.asp (last visited June 29, 2004) hereinafter Action Plan for Creating a Safe and Smart Border.

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reaches.29 As of this writing, the Agreement had not been implemented in either nation.

Despite these efforts, bi-national cooperation has not always prevailed since September 11th. In 2003, the United States initiated a “special registration” program. Males over age 16 from 25 countries, who had entered the United States on temporary visas prior to September 30, 2002, were required to appear for photographs, fingerprinting, and interviews. Nearly 14,000 were placed in removal proceedings, most of them for overstaying their visas.30 Thousands more fled to the U.S.-Canada border where, stranded in border hotels, shelters, and detention centers, they awaited refugee determination interviews in Canada. U.S. officials did not release detainees for their Canadian refugee interviews. This program raised significant humanitarian concerns, had questionable utility as a national security tool, and overwhelmed the Canadian asylum process.

The case of Maher Arar has become the subject of a Canadian Commission of Inquiry, led by Mr. Justice Dennis O’Connor, but has received scant attention in the United States. U.S. officials detained Arar, a dual citizen of Canada and Syria, as he attempted to pass through John F. Kennedy International Airport in New York on his way to Canada. After days of interrogation about his alleged terrorist ties and despite his repeated refusals to concede to deportation, the United States removed Arar to Syria (via Jordan), rather than Canada, where he reportedly suffered torture over a ten-month period.

The September 11th attacks also led to broad legislation and government restructuring in both countries. Most prominently, on March 1, 2003, the U.S. Department of Homeland Security (DHS) came into being in the largest U.S. government restructuring since World War II. DHS encompasses 180,000 federal workers from 22 agencies, including the former Immigration and Naturalization Service (INS), U.S. Customs Service and U.S. Coast Guard.31 This high-stakes transition is playing out most dramatically at the U.S. borders.

In response to these developments, the ABA’s Immigration and Nationality Committee, International Law Section decided in 2002 to undertake a study of the border. To the Committee, the Canada-U.S. border represented the epicenter of bi-national attempts to balance

29Agreement for Cooperation in the Examination of Refugee Status claims from National of Third Countries, Aug. 30, 2002, U.S.-Canada, available at http://www.cic.gc.ca/english/policy/safe-third.html (last visited July 18, 2004) hereinafter Safe Third Country Asylum Agreement. 30 Press Release, U.S. Immigration & Customs Enforcement, U.S. Dep’t of Homeland Security, Fact Sheet: Changes to National Security Entry/Exit Registration Systems (NSEERS) (Dec. 1, 2003), available at http://www.ice.gov/graphics/news/factsheets/nseersFS120103.htm (last visited June 29, 2004) hereinafter Changes to National Security Entry/Exit Registration (NSEERS); see also Rachel L. Swarns, Thousands of Arabs and Muslims Could be Deported, Officials Say, N.Y. TIMES, June 7, 2003, at A1.31War Against Terrorism: Hearing Before the Senate Comm. on the Judiciary, 108th Cong. (Mar. 4, 2003) (statement of Tom Ridge, Secretary of the Dep’t of Homeland Security), available at http://www.dhs.gov/dhspublic/display?content=493 (last visited Nov. 10, 2004).

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national security, free trade, economic development, and migrant rights. Between May and October of 2003, Committee delegations made fact-finding trips to three bi-national communities: Buffalo, New York and Fort Erie, Ontario; Windsor, Ontario and Detroit, Michigan; and Vancouver, British Columbia and Blaine, Washington. These included the two largest, bi-national communities along the border, as well as a more rural, albeit crucial, passageway between the countries that terrorists had already attempted to breach.

During these trips, Committee delegations met with U.S. and Canadian border officials, business people, academics, trade associations, and immigrant rights groups. The delegations also toured immigration facilities on both sides of the border. The trips had as their overarching objective to study the interplay between border security measures, trade, and migrant rights. At the time, many enforcement initiatives had just begun, including the absorption of the former INS and U.S. Customs Service into DHS. The Committee recognized that a definitive report on the DHS transition and post-9/11 security initiatives would be impossible. However, it believed that there would be value in studying the border during an historic transition period.

This Report has four additional parts. Section II describes the Canada-U.S. border prior to September 11th. In particular, it highlights the high degree of economic integration between the United States and Canada, as measured by the volume of trade, the amount of border traffic, the extensive use of “just in time” contracts, and the interdependence of local, bi-national communities. It concludes that a less efficient border would be untenable from both an economic and a national security perspective. This section also describes the extensive cooperation between U.S. and Canadian officials in addressing common border challenges. In particular, it outlines pre-9/11 programs that attempted to balance border security with the exigencies of trade and human migration. These programs led directly to the “smart border” agreement and action plan, which sets the framework and establishes the goals for U.S.-Canada border relations in the post-9/11 era.

Section III describes the joint security challenges facing the United States and Canada, and the efforts taken by both nations to address the threat of terrorism. The Report discusses the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act” or “the Act”),32 the creation of DHS and its early work on the U.S.-Canada border. This section also describes the security-related criticisms of the Canadian immigration system. In addition, it analyzes Canada’s Immigration and Refugee Protection Act (IRPA), its national security policy, and other reforms. Finally, it highlights a range of security programs and technologies, some bi-national, some specific to the United States or to Canada.

Section IV sets forth humanitarian, legal, and security concerns related to measures that target particular groups of migrants. This section describes the importance of immigrants to both

32USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).8

nations. It discusses three initiatives—the Safe Third Country Asylum Agreement, U.S. “special registration” programs, and the return of suspected terrorists to nations where they face torture—that undermined these proud traditions and U.S.-Canada relations. Section V outlines the Committee’s findings.

II. THE CANADA-U.S. BORDER PRIOR TO 9/11

The Canada-U.S. border has long reflected the inter-dependence of the two nations, as evidenced by its immense volume of commercial and personal traffic. While U.S. and Canadian border officials enjoyed a history of cooperation in addressing law enforcement challenges prior to 9/11, national security did not represent their primary focus.

A. Border Communities

One observer has described the border as an “artificial continental divide of common interests and similar people, a line drawn by long-dead treaty negotiators and cartographers with a warped sense of humor.”33 Border families, communities, and businesses have traditionally conducted their affairs with little impediment from the “artificial divide.” Residents of bi-national communities attend school, work, marry, and socialize together. George Haynal, Vice President of the Canadian Counsel for Chief Executives, has coined the word “intermestic”—a mix of “international” and “domestic”—to characterize cross-border relations.34

The Haskell Opera House and Library exemplify the border’s fluidity. The stage and front rows of the Opera House are located in Quebec, Canada, while the back rows and most of the balcony seats are in the United States.35 Inside the Opera House, a piece of black tape marks the border.36 The interdependence of some bi-national communities extends to emergency preparedness and medical care.37 After the terrorist attacks, hundreds of nurses living in Windsor, Ontario could not reach their jobs in Michigan, threatening the operation of U.S. hospitals.

In 2002, roughly one million pedestrians crossed legally from Canada to the United States.38 In 2000, Canadians made 14 million overnight visits to the United States, and 42 million Americans visited Canada.39 Local businesses—malls, restaurants, casinos, and sports

33Don Martin, Border Can’t Divide Common Interests, CALGARY HERALD (Canada), Aug. 5, 2003, at A1. 34 John Ward, Little Change in Canada-U.S. Relations, CANADIAN PRESS, Sept. 10, 2002.35Don Martin, Border Rules Breed Confusion: Threats Greets Unwitting Crossers, CALGARY HERALD (Canada), Aug. 6, 2003, at A1. 36Id.37Demetrios G. Papademetriou & Deborah Waller Meyers, Self-Governance Along the U.S. Canada Border: A View from Three Regions, in CAUGHT IN THE MIDDLE: BORDER COMMUNITIES IN AN ERA OF GLOBALIZATION (Carnegie Endowment for Int’l Peace 2001).38U.S.-CANADA-MEXICO FACT SHEET, supra note 23. 39Website, Statistics Canada, Gov’t of Canada, Top 15 Countries Visited by Canadians, available at http://www.statcan.ca/english/Pgdb/arts37d.htm (last visited Feb. 21, 2004).

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teams—depend heavily on cross-border customers.40 This degree of interdependence is not surprising when one considers that 90 percent of Canadians live within 100 miles of the border.41

B. Economic Interdependence

Globalization and free trade require relatively open borders, but this openness creates vulnerability to terrorism.42 The September 11th attacks confirmed the need for greater control over the flow of goods and people across the border. However, as both nations recognize, draconian border control tactics could devastate their economies.43 They could also be counter-productive from a security perspective, creating the kinds of conditions in which criminals and terrorists flourish. As one commentator puts it:

The experience over the past decade of stepped-up enforcement along the Mexican border suggest that U.S. efforts aimed at hardening its borders can have the unintended consequence of creating precisely the kind of an environment that is conducive to terrorists and criminals . . . . Draconian measures to police the border invariably provide incentives for informal arrangements and criminal conspiracies to overcome cross-border barriers to commerce and labor movements.44

The United States and Canada are among the world’s largest bilateral trading partners.45

In 2003, trade between them exceeded $372 billion.46 Roughly 82 percent of Canadian exports head to the United States and 19 percent of U.S. exports go to Canada. 47 Canada is the largest supplier of petroleum and total energy to the United States.48 It also serves as the largest export market for 39 U.S. states.49 The value of goods crossing the Ambassador Bridge linking Detroit,

40Papademetriou & Meyers, supra note 37, at 51, 59-60.41Id.42Stephen E. Flynn, America the Vulnerable, FOREIGN AFFAIRS (Jan./Feb. 2002), available at http://www.foreignaffairs.org/20020101faessay6557/stephen-e-flynn/america-the-vulnerable.html (lasted visited Feb.17, 2004).43Id. 44Border Security Technology: Hearing Before Senate Judiciary Comm., Subcomm. on Technology, Terrorism, and Gov’t Information, 108th Cong. (Mar. 12, 2003) (testimony of Stephen E. Flynn, Senior Fellow in National Security Studies and Director, Council on Foreign Relations Independent Task Force on Homeland Security Imperatives, before the U.S. Senate Judiciary Committee on Technology, Terrorism, and Government Information, Subcommittee on Border Security, Citizenship and Immigration) hereinafter Flynn Testimony of Mar. 12, 2003.45U.S.-CANADA-MEXICO FACT SHEET, supra note 23. 46BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES, supra note 14, at 3.47U.S.-CANADA-MEXICO FACT SHEET, supra note 23.48Basic Facts About Canada-U.S. Trade, supra note 24. 49Id. For statistics on trade between U.S. states and Canada, see U.S. DEP’T OF COMMERCE, TRADE STATS EXPRESS (2004), available at http://www.ese.export.gov (last visited Feb. 21, 2004). For trade data at each of the border crossing points, see U.S. DEP’T OF TRANSP., BORDER

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Michigan and Windsor, Ontario exceeds that of all U.S. exports to Japan.50 In 2003, heavy trucks made 13 million two-way trips across the Canada-U.S. border.51

Not surprisingly, business practices that capitalize on the relatively open and predictable border have prospered. The automobile industry has perfected “just-in-time-manufacturing” (JIT manufacturing) which treats border crossings as one step in an assembly line that moves parts quickly between Canada and the United States. The JIT concept has been replicated in the electronics, apparel, retailing and food industries.52 JIT manufacturing significantly reduces the costs of maintaining inventories,53 allowing components to be ordered and transported to assembly plants on an “as needed” basis.54 According to the automotive industry, if a parts shipment is delayed more than an hour, assembly plant disruption results.55 Delays initially lead to scheduling adjustments and ultimately to full plant closure. Every hour of plant disruption results in an estimated $60,000 in lost earnings.56 General Motors, Ford and Daimler-Chrysler all shut down plants due to the September 11th border delays.57

C. Pre-September 11th Joint Initiatives on Border Security

CROSSING: U.S.-CANADA BORDER CROSSING DATA (1994-2003), available at http://www.bts.gov/programs/international/border_crossing_entry_data/us_canada/pdf/entire.pdf (last visited Feb. 21, 2004). 50John Ward, Little Change in Canada-U.S. Relations, CANADIAN PRESS, Sept. 10, 2002, available at http://www.canoe.ca/CNEWSSept11/relations-cp.html. 51TRANSP. CANADA, TRANSPORTATION IN CANADA 2003: ANNUAL REPORT (2003), available at http://www.tc.gc.ca/pol/en/Report/anre2003/tc2003ae.pdf (last visited June 28, 2004). 52Marc L. Songrini, Just-In-Time Manufacturing, COMPUTERWORLD, Nov. 20, 2000, available at http://www.computerworld.com/industrytopics/manufacturing/story/0,10801,54131,00.html (last visited Apr. 15, 2004) (describes the use of JIT by Dell manufacturing and the company’s plan to save $15 million in three years); MERCER MGMT. CONSULTING, AND NOW, JUST-IN-CASE OPERATIONS, available at http://www.mercermc.com/Perspectives/Whitepapers/Commentaries/JICpress_v10.pdf (last visited Apr. 15, 2004) (on file with author Donald Kerwin). 53TRANSP. CANADA, JUST-IN-TIME, ALL THE TIME (last visited Feb. 21, 2004) (on file with author Donald Kerwin); see also, CHRISTOPHER SANDS, PROVIDE FOR THE COMMON DEFENSE: UPDATING THE CANADA-UNITED STATES SECURITY RELATIONSHIP (Center for Strategic & Int’l Studies 2001), available at http://www.csis.org/americas/canada/010202winnipeg.pdf (last visited Nov. 29, 2004) (on file with author Donald Kerwin).54DAVID B. ANDREA & BRETT C. SMITH, THE CANADA-U.S. BORDER: AN AUTOMOTIVE CASE STUDY (Center of Automotive Research Jan. 2002), available at http://www.dfait-maeci.gc.ca/can-am/pdf/an_automotive_case_study-e.pdf (last visited Apr. 15, 2004). 55Id. 56Id. 57Christopher Sands, Canada and the War on Terrorism: The U.S. Challenge on the North American Front, 2 CANADA FOCUS No. 3 (Center for Strategic and Int’l Studies, Wash., D.C.), Oct. 2001 hereinafter Canada and the War on Terrorism.

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Even prior to September 11th, Canada and the United States recognized that maintaining an open border required a commitment to security. The “Accord on Our Shared Border” (the Accord), announced in February 1995, committed both governments to a blueprint of shared goals and objectives such as: (1) promoting international trade; (2) facilitating the movement of people; (3) providing enhanced protection against drug and human smuggling; and (4) reducing costs to both governments.58 In 1997, President Clinton and Prime Minister Chrétien reaffirmed their commitment to the Accord by announcing modest joint initiatives, like providing security to small border communities.59

In 1999, President Clinton and Prime Minister Chrétien recommitted the two nations to developing joint solutions to border challenges. U.S. Secretary of State Madeline Albright and Canadian Minister of Foreign Affairs Lloyd Axworthy established the “Canada U.S. Partnership Forum” (CUSP) under the direction of their main deputies for hemispheric relations.60 This led to a series of meetings in 2000—the first held in Niagara-on-the-Lake, Ontario, and Buffalo, New York, and the second in Vancouver, British Columbia, and Blaine, Washington—in which senior officials discussed the best ways to maintain an open but secure border.61

Integrated Border Enforcement Teams (IBET) began in Washington state-British Columbia in 1996, and have since expanded across the border. In IBET operations, border and law enforcement officials from both countries share intelligence, enforcement strategies and resources to address terrorist threats, smuggling, and crime.62

The Commercial Vehicle Processing Centre (CVPC) began at the Peace Bridge in Fort Erie, Ontario in November 1999.63 CVPC attempts to avoid the congestion caused by lack of advance document preparation by allowing U.S. officials to review commercial paperwork for U.S.-bound trucks in Canada.

Despite these and other bi-national security measures, pre-9/11 border stakeholders emphasized the overriding need for an efficient border. In a series of town hall and focus group meetings as part of a 1998-1999 study, Carnegie Endowment scholars observed that border residents did not identify security (from other residents in bi-national communities) as a significant priority. They reported that:

58 GOV’T OF CANADA & U.S. DEP’T OF JUSTICE, CANADA-UNITED STATES ACCORD ON OUR SHARED BORDER: UPDATE 2000 (2000), available at http://www.cic.gc.ca/english/pub/border2000/border2000.html (last visited June 30, 2004).59Id. 60 CANADA-U.S. PARTNERSHIP, FORUM REPORT: BUILDING A BORDER FOR THE 21ST CENTURY (Canada Dep’t of Foreign Affairs & Int’l Trade 2000) available at http://www.canadianembassy.org/border/cuspreport-en.asp?format=print (last visited June 28, 2004).61 Id. 62 Website, Royal Canadian Mounted Police, Canada/U.S. Integrated Border Enforcement Teams (Nov. 11, 2004), at http://www.rcmp.ca/security/ibets_e.htm (last visited Dec. 20, 2004).63 Papademetriou & Meyers, supra note 37, at 75.

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Not a single person raised serious security concerns about the entry of either Canadians or Americans into their neighbor countries. Nor did anyone argue that a more open or differently managed border would lead to less (or presumably more) security. In fact, they were strongly skeptical of ‘solutions’ that might further inconvenience the legitimate traffic to try to catch an additional few violators.64

One prominent border coalition sought an open border by 2012, the 200 th anniversary of the War of 1812.65 Security has become a greater concern for border residents and groups in the post-9/11 era.

III. SEPTEMBER 11, 2001 AND ITS AFTERMATH

After September 11th, the United States and Canada faced a paradox. They depended on open economic relations for their prosperity and strength, but also recognized the need to safeguard their economic systems and infrastructure. As one commentator puts it:

U.S. prosperity—and much of its power—relies on its ready access to North American and global networks of transport, energy, information, finance, and labor. It is self-defeating for the United States to embrace security measures that end up isolating it from those networks.66

In introducing Canada’s national security policy, Prime Minister Paul Martin stated: “Our prosperity is directly linked to this openness and to our ability to flourish in an increasingly interdependent world.”67 The connection between prosperity and power is not lost on al Qaeda terrorists who select high-profile economic targets to weaken their enemies.68

A. The U.S. Response

The United States responded to September 11th attacks with its “war on terrorism.” Among other immigration-related measures, it passed the USA-PATRIOT Act, created DHS, and enhanced its border enforcement efforts.

1. The USA PATRIOT Act

Six weeks after the September 11th attacks, President Bush signed into law the USA PATRIOT Act. The Act included a number of reforms related to intelligence gathering and

64 Id. at 65.65 Id. at 69.66 Flynn Testimony of Mar. 12, 2003, supra note 44.67 PRIVY COUNCIL OFFICE, GOV’T OF CANADA, SECURING AN OPEN SOCIETY: CANADA’S NATIONAL SECURITY POLICY (Apr. 2004), available at http://www.Pco-bcp.gc.ca/docs/Publications/NatSecurnat/natsecurnat_e.pdf (last visited June 29, 2004) hereinafter CANADA’S NATIONAL SECURITY POLICY.68 THE 9/11 COMMISSION REPORT, supra note 11, at 153.

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sharing. It required: (1) the Federal Bureau of Investigation to share criminal history information from the National Crime Information Center (NCIC) with officials in the immigration process 69; (2) the development of technology to verify the identity of those seeking a visa or entry;70 (3) an entry-exit tracking system;71 (4) increased monitoring of foreign students;72 and (5) assurance that countries whose nationals can enter the United States without visas have developed tamper-resistant passports.73

The USA PATRIOT Act also expanded the security-related grounds for inadmissibility, removal, and detention. The Act bars from admission any representative of a “foreign terrorist organization” or of a group whose endorsement of terrorism undermines the U.S. anti-terror campaign.74 The spouses and children of persons inadmissible on these grounds cannot be admitted if the terrorist activity occurred within the previous five years.75 The Act provides an exception, however, if a spouse or child “did not know or should not reasonably have known” about the terrorist activity or if he or she renounced it.76

The Act makes inadmissible those non-citizens who are associated with terrorist organizations or who intend to engage in activities that could endanger U.S. “welfare, safety or security.”77 It provides for the deportation of those who engage in “terrorist activity” after admission.78 A non-citizen “engages in terrorist activity” when he incites, plans, gathers information on targets, solicits recruits or funds, joins a terrorist organization, or commits an act that he “knows, or reasonably should know, affords terrorists material support.”79 The term “terrorist organization” encompasses groups designated as such by the U.S. State Department or at least two persons who commit, incite to commit, prepare or plan, or gather information for terrorist activity.80

The Act requires the detention of persons who are “certified” as suspected terrorists or terrorist supporters. These include non-citizens whom the Attorney General has “reasonable grounds to believe” can be excluded or deported for terrorism or related activity. 81 The Attorney General can “certify” non-citizens “engaged in any other activity that endangers the national security.”82

69 The USA PATRIOT Act § 403(b)(1) (Oct. 26, 2001). 70 Id. § 403(c)(1).71 Id. §§ 414(a) and 414(c). 72 Id. § 416.73 Id. § 417(b). 74 Immigration and Nationality Act, 8 U.S.C. § 212(a)(3)(B)(i)(IV) (1952). 75Id. § 212(a)(3)(B)(i)(VII).76Id. § 212(a)(3)(B)(ii).77Id. § 212(a)(3)(F). 78Id. § 237(a)(4)(B).79Id. § 212(a)(3)(B)(iv). 80Id. § 212(a)(3)(B)(vi).81Id. § 236A(a)(3)(A). 82Id. § 236A(a)(3)(B).

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2. The Department of Homeland Security

DHS represents one of the largest government restructuring efforts in U.S. history. 83

Prior to 9/11, several high-level commissions had considered how to restructure the U.S. government to protect the country from terrorism.84 DHS established a unified structure in order to allow information to be shared “horizontally” across federal agencies and “vertically,” between federal, state, and local governments, private industry and citizens. This vision has five corresponding goals: (1) to integrate information across the federal government; (2) to integrate information sharing across state and local governments; (3) to adopt common “meta-data” standards for electronic information related to homeland security; (4) to improve public safety emergency communications; and (5) to ensure reliable public health information.85

DHS is organized under four main directorates: (1) Border and Transportation and Security; (2) Emergency Preparedness and Response; (3) Science and Technology; and (4) Information Analysis and Infrastructure Protection.86 The Border Transportation and Security Directorate assumed major border security operations, including the U.S. Customs Service (previously part of the Department of Treasury), the INS (from the Department of Justice), the Federal Protective Service (from the General Services Administration), the Transportation Security Administration (from the Department of Transportation), the Federal Law Enforcement Training Center (from the Department of Treasury) and Animal and Plant Health Inspection Service (from the Department of Agriculture).87

83U.S. DEP’T OF HOMELAND SECURITY, THE NATIONAL STRATEGY FOR HOMELAND SECURITY (July 2002), available at http://www.whitehouse.gov/homeland/book/nat_strat_hls.pdf (last visited June 29, 2004) hereinafter THE NATIONAL STRATEGY FOR HOMELAND SECURITY. 84Col. Randall J. Larsen & Ruth A. David, Homeland Defense: The State of the Union, J. OF HOMELAND SECURITY (May 2001), available at http://www.homelandsecurity.org/journal/articles/displayArticle.asp?article=6. The article summarizes the work of commissions that considered government restructuring for security purposes prior to DHS. In December 1999, the Gilmore Commission, officially known as the “Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction,” presented a report to Congress calling for the appointment of a single federal officer to combat terrorism, a reorganization of congressional committees and an integrated national strategy. Id. In June 2000, the Bremer Commission, termed the “The National Commission on Terrorism,” recommended improvements to the law enforcement and intelligence communities. In January 2001, the Hart-Rudman Commission, called the “U.S. Commission on National Security/21st Century,” issued its Phase III report, urging the United States to make “securing the national homeland” a top priority by creating a new independent agency called “The National Homeland Security Agency.” Id.85THE NATIONAL STRATEGY FOR HOMELAND SECURITY, supra note 83, at xi.86Homeland Security Act of 2002, Pub. L. No.107-296, 116 Stat. 2153 (Nov. 25, 2002); see also, Exec. Order No. 13,284, 68 Fed. Reg. 4075 (January 28, 2003), available at http://www.dhs.gov/dhspublic/display?theme=59&content=409&print=true (last visited Feb. 21, 2004) (summarizing the history of executive orders from the Homeland Security Act).87Website, U.S. Dep’t of Homeland Security, DHS Organization: History, at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0133.xml (last visited Nov. 30, 2004).

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The Customs and Border Protection (CBP) division represents the largest merger of people and functions in DHS.88 It seeks to provide “one face at the border.”89 To further this objective, it has implemented uniform inspection procedures.90 CBP is also charged with distributing enforcement personnel and resources more evenly between the U.S. northern and southern borders.91

The ABA Committee delegations found widespread support among U.S. border officials for the creation of DHS and for the transition to a single agency responsible for border control. Even career INS officials who lamented the lack of “legacy” INS staff in high-ranking DHS positions agreed that the transition “had to happen” and was “inevitable.” Most officials claimed that the transition had been seamless, although some indicated that their understanding of DHS’s mission—and their role in it—was less clear than it had been at INS. The officials also identified the need for additional staffing, particularly to meet the demands of U.S. VISIT and other new initiatives. However, they cautioned that staff should not be added rapidly, without experience of the efficiencies and demands that the transition would create. As the transition moved ahead, the officials said, they would have a better sense of the skills and resources that would be needed. Several expressed concern that CBP not grow too fast, as they believed that the Transportation Security Administration had.

Border officials also argued for the need to calibrate staffing and technology. Given the border’s size and new security challenges, the officials recognized the need for technology to serve as a “force multiplier” and thought that any hiring plan should reflect the efficiencies and needs created by new and expanded technology. In one site, for example, a Committee delegation visited a monitoring room where one DHS staff person tracked 10-hours-a-day 32 screens with live feeds from 120 border locations. CBP officials thought it more important to hire more staff to handle this responsibility than to add more field officers.

Border officials stressed the crucial importance of training, given the consolidation of functions, staff attrition and projected agency growth. Generally, DHS supervisors approved of the training that officers were receiving. However, some expressed concern over the need for more expeditious supervisor training and better training in the use of new technology. CBP has created a 71-day basic training course that combines the previous 53-day Customs’ Inspector and 57-day basic Immigration Inspector courses. The CBP officer course for new hires began in October 2003. “Legacy” INS and Customs’ Service officers began cross-training in 2004.

Immigrant advocacy groups have expressed concern that the two branches of DHS

88Bonner Testimony, supra note 1.89Press Release, U.S. Customs & Border Protection, U.S. Dep’t of Homeland Security, Frontline Defense Against Terrorism is Priority Mission As U.S. Customs and Border Protection Commemorates One-Year Anniversary (Mar. 1, 2004), available at http://www.cbp.gov/xp/cgov/newsroom/press_releases/archives/2004_press_releases/03202004/03022004.xml (last visited June 21, 2004). 90Id. 91Id.

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charged with enforcing immigration policies, CBP and Immigration and Customs Enforcement (ICE), should remain separate from U.S. Citizenship and Immigration Services (USCIS), the DHS division charged with providing immigration benefits. However, both the “services” and “enforcement” functions should be closely coordinated.92 Their separation creates the potential for inconsistent policies that could adversely impact immigrants and refugees.

DHS also faces significant challenges related to intelligence and information sharing. As the U.S. General Accounting Office reported, nine federal agencies operate 12 watch lists.93 The disparate missions and cultures of these agencies, as well as technical barriers, inhibit information sharing.94 According to its Office of Inspector General, DHS has failed to take the lead in consolidating these lists.95 DHS also bears the responsibility for coordinating information sharing among 3,000 counties and nearly 90,000 municipalities.96 Although the agency has set parameters on how this will occur, the process will be long and arduous.97

The high rate of attrition among border officials presents another challenge to DHS. Border Patrol attrition rates spiked at 18 percent in 2002, as agents took newly-created jobs in the Transportation Security Administration, but has since fallen to roughly 10 percent.98 In February 2003, the Department of Justice reported that approximately 26 percent of inspectors in air, land and sea ports-of-entry were newly hired.99

92CENTER FOR MIGRATION STUDIES, IMMIGRATION POLICY, LAW ENFORCEMENT AND NATIONAL SECURITY, CMS SPECIAL REPORT 16 (2003) (on file with author) hereinafter CMS SPECIAL REPORT: IMMIGRATION POLICY, LAW ENFORCEMENT AND NATIONAL SECURITY.93U.S. GENERAL ACCOUNTING OFFICE, INFORMATION TECHNOLOGY: TERRORIST WATCH LISTS SHOULD BE CONSOLIDATED TO PROMOTE BETTER INTEGRATION AND SHARING 15-16, GAO-03-322 (Apr. 2003).94Id. at 17-26.95OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF HOMELAND SECURITY, DHS CHALLENGES IN CONSOLIDATING TERRORIST WATCH LIST INFORMATION 6-8, OIG-04-31 (Aug. 2004).96Dibya Sarkar, DHS Still Working on Info-Sharing Plans, FCW.COM, Nov. 7, 2003, at http://www.fcw.com/geb/articles/2003/1103/web-dhs-11-07-03.asp; DEMOCRATIC TASK FORCE ON HOMELAND SECURITY, FEDERAL HOMELAND SECURITY ASSISTANCE TO AMERICA’S HOMETOWNS: A SURVEY AND REPORT FROM THE DEMOCRATIC TASK FORCE ON HOMELAND SECURITY (Oct. 29, 2003) (discussing the lack of coordination between the federal and local governments). 97 Sarkar, supra note 96. 98Steve Mangino, Managing Change Comes with the Territory, FEDERALTIMES.COM, June 16, 2003, at http://federaltimes.com/index.php?S=233464 (last visited Jan. 28, 2005).99Federal Law Enforcement Personnel in Post 9/11 Era: Hearing Before House Gov’t Reform Comm., Subcomm. on Civil Service and Agency Organization, Subcomm. on Criminal Justice, Drug Policy, and Human Resources, 108th Cong. (2003) (testimony of Ignatius Gentile, President, Dep’t of Homeland Security Council 117, American Federation of Government Employees), available at http://reform.house.gov/UploadedFiles/Gentile_AFGE.pdf (last visited Jan. 28, 2005); see also Shawn Zeller, Border Blues, GOV’T EXECUTIVE MAG., Oct. 1, 2003, available at http://www.govexec.com/features/0903hs/HS0903s1.htm (last visited Jan. 28, 2005).

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Commentators have also criticized DHS for not using its substantial resources in a more focused, fiscally responsible manner.100 Because absolute security cannot be guaranteed and resources are limited, risk management strategies must be employed. DHS must address the most pressing threats to domestic security. As the 9/11 Commission put it:

America can be attacked in many ways and has many vulnerabilities. No defenses are perfect. But risks must be calculated; hard choices must be made about allocating resources. Responsibilities for America’s defense should be clearly defined. Planning does make a difference, identifying where a little money might have a large effect.101

3. U.S. Border Enforcement

Since September 11th, the United States has adopted and strengthened border control strategies that are rooted in three basic principles. First, the border must represent the last line of defense. Anti-terrorism efforts must begin beyond U.S. territorial limits. Second, there needs to be a risk management approach to enforcement that focuses on high risk shipments, containers, trucks and people, and that enlists as partners frequent and low-risk crossers who have a vested interest in the border’s smooth and efficient operation. Third, the United States needs to extend and build on its excellent working relations with its northern and southern allies. In ABA Committee delegation visits, U.S. officials reported that, since September 11 th, the primary enforcement priority along the Canada-U.S. border has shifted from drug trafficking (which remains a high priority) to prevention of terrorist attacks. Border officials further defined their main priorities as prevention of: (1) an attack on border infrastructure; (2) the introduction of a radiological device or weapon of mass destruction; (3) the entry of terrorists or those who materially support them.

For a short period after September 11th, INS staffed all border crossings with two armed inspectors.102 Subsequently, CBP “hardened” the border with gates, signs, lights and remote surveillance systems.103 The number of CBP officials on the Canada-U.S. border has risen from 1,600 on September 11th to 2,900 by the end of 2003.104 The number of U.S. Border Patrol agents on the Canada-U.S. border is projected to increase from 368 positions on September 11 th to roughly 1,000 agents in 2004.105

100U.S. DEPT. OF HOMELAND SECURITY, DHS BUDGET IN BRIEF, available at http://www.dhs.gov/dhspublic/display?theme=12&content=3131 (last visited Jan. 28, 2005); Judi Hasson, House Pumps Up Homeland Funding, FED. COMPUTER WK. (June 23, 2003), available at http://fcw.com/fcw/articles/2003/0623/news-house-06-23-03.asp (last visited Jan. 28, 2005); Roger Simon, et al., One Year after 9/11—A Nation Changed: Are We Safer, U.S. NEWS & WORLD REP., Nov. 11, 2002.101THE 9/11 COMMISSION REPORT, supra note 11, at 364.102Bonner Testimony, supra note 1.103Id.104Id.105Id.

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U.S. border officials reported that they do not plan to implement a blockade on the Canada-U.S. border, as they have on the U.S.-Mexico border. Instead, they described their operative model as one of “vertical enforcement,” locating officers at key check points and using technology as a force multiplier. The size, terrain and climate of the Canada-U.S. border, they argued, made a “horizontal” model impractical and unnecessary.

Border officials uniformly expressed support for new and expanded technology. This includes cameras tied to motion sensors, radiation portal monitors, personal radiation detectors, radiation isotopes identifiers, mobile Vehicle and Cargo Inspection Systems (VACIS) (which use gamma rays to search trucks for anomalies in their cargo), and dogs sniffing for drugs, chemicals, and nuclear materials.106 In addition, officials highlighted programs such as NEXUS, the Free and Security Trade Program (FAST), and the Container Security Initiative (CSI) (discussed in more detail below) as illustrative of attempts to employ technology to ensure a “smarter” border. In Blaine, Washington, for example, underground sensors linked to cameras feed “real time” footage of multiple border locations into a control room at the Border Patrol station. Rather than relying on the physical presence of agents to patrol the borders—a scenario that requires significant staff and potential danger—officials monitor the border remotely from a single room.

Despite advances, officials stressed that no amount of technology, staffing or preparation can guarantee border security. Dangerous people and cargo can still cross the border undetected and a catastrophic attack (tied to the border) could still occur. U.S. and Canadian officials described the pressure of trying to prevent the entry of even a single terrorist, given the potential consequences. One U.S. official called post-9/11 border control a “game of one.” A Canadian official spoke of the overriding difficulty of “knowing what’s inside a person’s head.” Another U.S. official said that any crosser might be a “worst case scenario” and that agents know that they will not get a “second chance” to prevent an attack. Many spoke about the “millennium bomber” case in which the intuition and experience of a single agent foiled an ambitious terrorist plot. Professional intuition and judgment, however, do not always suffice. When asked what other factors play a role in capturing terrorists, one Border Patrol officer responded “luck.” While the United States must work to prevent further attacks, it must also “prepare to deal with attacks that are not stopped.”107

Committee delegations also learned of U.S. outbound inspection operations. U.S. officials characterized these as “pulse and surge” (not predictable) inspections of departing traffic. Initially, outbound inspections were intended to enforce currency laws, as well as trade and technology embargos. Since 9/11, they have also been used to protect infrastructure and gather intelligence. B. The Canadian Response

Canada has responded to the post-9/11 world by attempting to balance security concerns,

106BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES, supra note 14, at 19.107THE 9/11 COMMISSION REPORT, supra note 11, at 364.

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with a commitment to maintaining its own identity and values.108 Like the United States, it has passed comprehensive immigration and counter-terror legislation, restructured its intelligence, law enforcement, and border enforcement agencies, and implemented new enforcement initiatives. U.S. and Canadian border enforcement philosophies mostly track each other. Canada recognizes “that a modern border requires, as much as possible, that screening activities should take place before a traveler or cargo arrives,” that the border must facilitate “trade and travel,” and that “high risk travelers and cargo” must be targeted and prevented from entering.109

1. Canadian Immigration-Related Security Measures

Canada has worked hard to dispel criticism that its immigration policies threaten the United States.110 Shortly after September 11th, inaccurate reports surfaced that as many as five of the terrorists had entered the United States from Canada.111 However, the United States has continued to express concerns about Canadian citizens who belong to al Qaeda,112 and to warn that a threat might “find its way to the United States from Canada.”113 At the same time, it has praised Canada’s heightened border enforcement efforts, particularly those taken in response to key U.S. political events and anniversaries that terrorists might target.114

One of Canada’s three national security goals is to ensure that it “is not a base for threats to our allies.”115 Canadian officials argued that Canada should not be viewed as a haven for terrorists or a threat to the United States. They also recognized that if Canada were viewed as a threat, this could result in more restrictive U.S. border policies, which would have a disastrous effect on Canada’s economy. Canadian policy documents have been explicit about this

108KENT ROACH, SEPTEMBER 11: CONSEQUENCES FOR CANADA 14 (2003); Drew Fagan, Home and Abroad: North America’s Remarkable Reluctance to Build Community, GLOBE & MAIL (Toronto, Can.), May 27, 2003; Jeffrey Simpson, They’re Mars, We’re Venus: Our Economic and Security Interests Are More Aligned with Americans than Ever, But Our Instincts and Values Have Never Differed More, GLOBE & MAIL (Toronto, Can.), Mar.21, 2003. 109CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 41.110See generally Christopher Sands, Canada and the War on Terrorism: The U.S. Challenge on the North American Front, 2 CANADA FOCUS No. 3 (Center for Strategic & Int’l Studies Oct. 2001), available at http://www.csis.org/americas/canada/focus/v2i3.pdf; Bob McDonald, Time for Canada to Smarten up to Realities of Terrorism, TORONTO SUN (Can.), Sept. 11, 2001; James Bissett, Canada’s Asylum System: A Threat to American Security?, BACKGROUNDER, May 2002.111 Sands, supra note 110.112Press Release, Public Safety and Emergency Preparedness Canada, Gov’t of Canada, Statement from the Deputy Prime Minister on the Issue of the Terrorist Threat in the United States (May 26, 2004), available at http://www.psepc-sppcc.gc.ca/publications/news/20040526_e.asp (last visited June 21, 2004); see also, Ashcroft, Mueller Discuss Terrorist Threat, supra note 12.113Kathleen Harris, Canada Asked to Help Reduce Terror Threat, OTTAWA SUN (Can.), Oct. 23, 2004, at 7.114Terry Pedwell, Ashcroft Turns to Canada to Help Fight Terror Threat, LONDON FREE PRESS, Oct. 23, 2004, at A6.115CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 5.

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concern.116

The officials stressed that Canada had instituted many security measures before the United States, and had acted decisively in the aftermath of September 11 th. Even prior to 9/11, for example, Canada had: (1) linked its domestic and overseas computer systems and watch lists; (2) tracked immigrants from first contact to citizenship; (3) established a waiting period for visa applicants from certain countries; and (4) instituted a pre-clearance program for airline passengers. In addition, roughly 200,000 undocumented persons reside in Canada, compared to an U.S. undocumented population of roughly 10 million.117 Any risk posed by these residents, officials argued, would necessarily be greater in the United States.

Some U.S. immigration officials maintained that Canada’s visa waiver program constituted a source of vulnerability to the United States. Because Canada’s list of visa waiver countries differs from the U.S. list, they argued that foreign nationals who could not otherwise enter the United States without a visa could easily enter from Canada after obtaining visa-exempt entry into Canada. The concern also extended to “permanent residents” in Canada. 118 Other U.S. officials, however, disputed this claim, arguing that Canada’s immigration policies should not impact who the United States allows to enter. This issue has subsequently been resolved. As of March 17, 2003, foreign nationals and permanent residents of Canada must present a valid U.S. non-immigrant visa to enter the United States, with the exception of immigrants from countries on the U.S. visa waiver list.119 Canada has also begun to issue new, fraud-resistant

116News Release, Dep’t of Nat’l Defence & Canadian Forces, Gov’t of Canada, Backgrounder: Highlights of the Public Safety Act, 2002 (Feb. 3, 2004), available at http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=1375 (last visited June 29, 2004) (“The ability to share information is critical to sustaining our border initiatives with the U.S., which, in turn, are critical to Canada’s economic security.”) hereinafter Backgrounder: Highlights of the Public Safety Act, 2002.117JEFFREY S. PASSEL ET AL., UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES 4 (Urban Inst. Immigration Studies Program 2004), available at http://www.urban.org/UploadedPDF/1000587_undoc_immigrants_facts.pdf.118As in the United States, permanent residents in Canada have a right of entry and residence, but not citizenship.119The United States has also adopted a series of measures designed to safeguard its visa waiver program. U.S. visa waiver countries are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. By October 24, 2004, citizens of visa waiver countries will be required to present a machine-readable passport (MRT)—with biographic data that can be read and transmitted—to enter the United States. This requirement currently applies to citizens of Andorra, Belgium, Brunei, Liechtenstein and Slovenia. Apart from the MRP requirement, visa waiver countries are required to establish programs to issue tamper-proof passports with biometric identifiers by October 26, 2004, as a condition of their continued participation in the program. In addition, visa waiver travelers will be required to present biometric passports for all passports issued after October 26, 2004. The U.S. Department of State and DHS favor postponing the biometric passport requirement.

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permanent resident cards to all new immigrants arriving in Canada and to permanent residents.120

It will begin issuing passports with biometric data in 2005.121

The Canadian government (and others) also expressed concern that the nation’s refugee program, which has been characterized by its independent tribunal process, fair legal standards and social service benefits, created “a security gap.”122 In late 2002, Canadian authorities arrested Mohamed Harkat, an Algerian national and alleged member of an al Qaeda “sleeper cell” who had been granted refugee status in Canada.123 Security concerns may lie at the heart of the Safe Third Country Asylum Agreement which requires migrants to apply for asylum in the first of the two countries that they reach. Essentially, the Agreement removes from Canada the responsibility—and potential blame—for asylum-seekers that transit through the United States.

2. The Immigration Reform and Protection Act

Canada has responded to the post-9/11 era with comprehensive immigration legislation to strengthen the security of its refugee and immigration systems. Under the Immigration and Refugee Protection Act (IRPA),124 most migrants can make only a single refugee claim.125

Previously, some refugee claimants who lost their cases in Canada could return after 90 days outside the country to make a second claim. IRPA allows persons, who have been denied refugee status and are facing removal, to apply for protection as part of a “pre-removal risk assessment” (PRAA) process if new evidence has arisen since the denial, was not reasonably available, or could not reasonably have been presented at the time.126 Persons denied refugee protection based on their criminality or the danger they pose can be granted PRAA protection only based on risk of torture, death, or cruel and unusual treatment or punishment (not if they meet the refugee standard).127 In those cases, acceptance of an application stays the removal order, but does not confer refugee protection.128

120Press Release, Canadian Embassy (Wash., D.C.), Governor Ridge and Deputy Prime Minister Manley Issue One-Year Status Report on the Smart Border Action Plan (Oct. 3, 2003), available at http://www.canadianembassy.org/border/status-en.asp (last visited Oct. 29, 2003); Website, U.S. Dep’t of State, Visa Waiver Program (VWP) (Oct. 2004) (last visited April 10, 2005), at http://travel.state.gov/visa/temp/without/without_1990.html#5.121CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 45.122Website, Canadian Security Intelligence Service, Gov’t of Canada, Screening of Refugee Claimants (Feb. 2004), available at http://www.csis-scrs.gc.ca/eng/backgrnd/back15_e.html (last visited Nov. 29, 2004).123Dana Priest & DeNeen L. Brown, ‘Sleeper Cell’ Contacts Are Revealed by Canada, WASH. POST, Dec. 25, 2002, at A1.124See Citizenship and Immigration Canada’s web-site for a clause-by-clause analysis of what IRPA changed in Canada’s Immigration and Refugee Act, available at http://www.cic.gc.ca/english/irpa/bkgrnd.html (last visited Nov. 29, 2004).125Immigration and Refugee Protection Act, S.C. 2001, ch. 27, § 101(1)(b)-(c) (2005) (Can.).126Id. § 113(a).127Id. § 113(d).128Id. § 114(1)(b).

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IRPA extends protection to persons who qualify under the United Nations’ Convention Relating to the Status of Refugees,129 the United Nations’ Convention Against Torture,130 and to those who would otherwise be at risk of life or cruel and unusual treatment or punishment if they were returned to their country of origin.131

IRPA established broad security-related grounds for inadmissibility for permanent residents and foreign nationals who: (1) engage in espionage or “subversion against a democratic government, institution, or process”; (2) engage in or instigate the “subversion by force of any government”; (3) engage in terrorism; (4) constitute a danger to Canada’s security; (5) engage in violence that might endanger the lives or safety of persons in Canada; or (6) belong to an organization that engages, has engaged, or will engage in acts of subversion or terrorism.132 To remain in Canada, persons in these categories must demonstrate that their presence is not “detrimental to the national interest.”133

IRPA created a confidential and summary procedure for addressing allegations or suspicion of inadmissibility on security-related grounds. The Minister of Citizenship and Immigration and the Solicitor General can sign a certificate stating that a permanent resident or foreign national is inadmissible on security grounds, which is referred to the Federal Court.134

The judge must keep confidential the information that underlies the certificate.135 If the judge finds the certificate reasonable, this constitutes conclusive proof of inadmissibility, the removal order may not be appealed, and the person cannot apply for refugee protection.136 If the certificate is found to be unreasonable, the judge can quash it and allow an application for protection to proceed.137 A foreign national subject to a certificate of inadmissibility on security-related grounds must be detained.138

IRPA allows for the warrantless arrest and detention of a foreign national (not a permanent resident), other than a refugee, who an immigration officer has reasonable grounds to believe is inadmissible, a danger, a flight risk, or whose identity cannot be determined.139 A permanent resident or foreign national may be detained after entry into Canada, if this is necessary to complete an examination or there are reasonable grounds to suspect the person is

129Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137; Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.130 Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, 1465 U.N.T.S. 113, 114.131Immigration and Refugee Protection Act §§ 95(1)(a)-(b) and 97(1)(a)-(b).132Id. § 34(1)(a)-(f).133Id. § 34(2).134Id. § 77(1).135Id. § 78(b).136Id. § 81(a)-(c).137Id. § 80(2).138Id. § 82(2).139Id. § 55(2)(a)-(b).

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inadmissible on security grounds.140 IRPA provides for the regular review of detention determinations.141 It also allows for non-disclosure of information in admissibility hearings, detention reviews, or appeals.142 Finally, it increases the penalties for human smuggling, including fines of up to $1 million and life imprisonment for those convicted of smuggling 10 or more persons.143

3. Public Safety Act

The Public Safety Act, 2002, which became law in May 2004, represents a key component of Canada’s national security policy.144 Among other measures, it allows Ministers to issue interim orders to respond to security, health and safety threats that require immediate action.145 It requires air carriers to provide passenger information, upon request, to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, and Transport Canada so that these entities can assess security threats.146 It also allows Citizenship and Immigration Canada (CIC) to enter agreements and “arrangements” to share immigration-related information with foreign governments.147

4. Public Safety and Emergency Preparedness

Canadian agencies have also been restructured to address security threats. The Department of Public Safety and Emergency Preparedness, established on December 12, 2003, integrates core functions related to national security, intelligence, emergency management, policing, corrections, and border enforcement.148 Six agencies now report to the Minister of Public Safety and Emergency Preparedness: (1) the Royal Canadian Mounted Police; (2) Canadian Security Intelligence Service; (3) Correctional Service of Canada; (4) National Parole Board; (5) Canadian Firearms Center; and (6) the Canadian Border Services Agency (CBSA).

The CBSA, in turns, consolidates: (1) customs functions that were previously located in the Canada Customs Revenue Agency (CCRA); (2) intelligence, interdiction, and border enforcement functions formerly handled by CIC; and (3) the passenger and initial import

140Id. § 55(3)(a)-(b).141Id. § 57.142Id. § 86(1).143Id. § 117(2).144Backgrounder: Highlights of the Public Safety Act, 2002, supra note 116. 145Id.146Id.147Id.148CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 9, 24; see also News Release, Office of the Prime Minister, Gov’t of Canada, Changing Government, Prime Minister Announces Appointment of Cabinet (Dec. 12, 2003), available at http://www1.pm.gc.ca/eng/news.asp?id=2 (last visited June 21, 2004); Campbell Clark, et al., Martin Government to Unveil Public-Safety Department Responsibilities Would Include Health, Disaster Response, Sources Say, GLOBE & MAIL (Toronto, Can.), Dec.12, 2003, at A4.

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inspection services formerly with the Canadian Food Inspection Agency.149 This restructuring largely mirrors DHS. However, in a deliberate attempt to de-couple national security and immigration, the CBSA does not handle immigration benefits and services.150

Immigrant advocacy groups have expressed concern about the separation of the enforcement and the facilitation/services arms. They argue that this will lead to conflicting policies and to case decisions on removal and loss of status that do not appropriately weigh facilitation issues.

5. Public Security and Anti-Terrorism

The Public Security and Anti-Terrorism (PSAT) committee is a high-level, multi-agency working group designed to enhance security and address bi-national security challenges. PSAT’s five priorities are: (1) to keep terrorists out of Canada; (2) to detect, prosecute, and remove terrorists; (3) to facilitate Canada-U.S. relations on security matters; (4) to facilitate international initiatives; and (5) to protect Canadian infrastructure.151 In December 2002, PSAT’s marine security plan was approved. The plan seeks to protect domestic ports and, in general, to use intelligence to defuse threats before they reach Canadian territorial waters.152 It includes bi-lateral initiatives, like Joint In-Transit Container Targeting Teams, that screen information on containers arriving at key North American ports.153 More than 2.5 million containers pass through Canadian ports each year, with a large number headed to the United States.154 Canada will also explore the use of customs officials at overseas ports to assure inspection of high-risk containers.155

6. Canadian Border Enforcement

ABA Committee delegations learned of the longstanding cooperation between U.S. and Canadian border officials, and Canada’s increased border enforcement efforts after 9/11.156

However, Canadian officials identified one area of concern. Unlike U.S. immigration officials, Canadian immigration officials do not work the primary inspection line, leaving this

149News Release, Canada Revenue Agency, Gov’t of Canada, Creation of Canada Border Services Agency (Dec. 12, 2003) (on file with author). 150Drew Fagan, Security Agency Won’t Mirror U.S. Operation, McLellan Says, Public Safety Ministry’s Responsibilities Not as Sweeping in Scope, Minister Says, GLOBE & MAIL (Toronto, Can.), Dec. 13, 2003, at A13.151Capt. Peter Avis, Surveillance and Canadian Maritime Domestic Security, 4 CANADIAN MILITARY JOURNAL No. 1, at 9-10 (Spring 2003), available at http://www.journal.forces.gc.ca/engraph/Vol4/no1/policy1_e.asp.152Id.; see also News Release, Transp. Canada, Gov’t of Canada, Government of Canada Announces up to $172.5 Million in New Marine Security Projects (Jan. 22, 2003), available at http://www.tc.gc.ca/mediaroom/releases/nat/2003/03-gc001.htm (last visited June 29, 2004). 153News Release, supra note 152.154CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 37.155Id. at 40.156Id. at 41.

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responsibility to customs officials. Customs officials refer certain border crossers to immigration officials in secondary inspection. Canadian officials worried that customs officials were not trained to identify persons who presented security or other risks. They believed that immigration inspectors should be involved in primary inspection.

C. Specific Programs and Initiatives: Post 9/11 Efforts to Ensure a Secure Border

On December 12, 2001, Prime Minister Jean Chrétien and President George W. Bush signed the Smart Border Declaration which attempts to ensure security and facilitate the legitimate flow of people and goods.157 The Declaration’s centerpiece is a 30-point action plan.158

A related Canada-U.S. statement on migration calls for: (1) expanded joint border enforcement teams; (2) coordination between national and local law enforcement on both sides of border; (3) coordinated gathering and dissemination of intelligence; (4) synchronized visa waiver programs; and (5) joint development of biometric identifiers for travel documents.159 Border officials expressed support for these initiatives, although they recognized that sovereignty issues complicated joint- and pre-inspection efforts, a goal of the action plan.

Under the Smart Border agreement, the United States and Canada have agreed to move forward on a variety of joint initiatives, independent (and sometimes parallel) programs, and enhancements to pre-September 11th efforts. The programs attempt to concentrate resources on high-risk people and cargo, to enlist as partners the corporate sector and frequent border crossers (who have a vested interest in a secure and predictable border), and to stop potential threats before they reach the border.

1. Free and Secure Trade Program

Free and Secure Trade (FAST), a bi-national program, allows for the expedited movement of pre-approved low-risk importers, carriers, and drivers across the U.S.-Canadian border.160 FAST offers:

Expedited clearance for carriers and importers who have enrolled in the U.S. Customs-Trade Partnership Against Terrorism (C-TPAT) or Canada’s Partners in Protection (PIP) program;

Streamlined and integrated registration processes for drivers, carriers,

157Press Release, Dep’t of Foreign Affairs & Int’l Trade, Gov’t of Canada, The Canada-U.S. Smart Border Declaration (Dec. 12, 2001), available at http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=1&cat=10&did=1669 (last visited July 2, 2004).158Action Plan for Creating a Secure and Smart Border, supra note 28.159Canada-U.S. Joint Statement on Cooperation on Border Security, supra note 28. 160FAST applicants that wish to import shipments into the United States must be accepted into the C-TPAT program. Applicants wishing to import shipments into Canada must be accepted into the PIP program. Applicants wishing to send shipments in both directions must be accepted in both programs.

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and importers;

The ability to meet customs requirements with less information, use of dedicated lanes at major crossings, and physical examinations only on matters related to public security and safety;

Managers who build client partnerships and monitor compliance with program requirements.161

A prospective FAST participant must complete an application which requests detailed information about the company’s structure and operations. Once approved, a company must use a FAST-approved carrier and a FAST-approved driver to transport goods across the border.

FAST is available at the 12 highest-volume border crossings: Detroit (Michigan)/Windsor (Ontario); Buffalo (New York)/Fort Erie (Ontario); Lewiston (New York)/Queenston (Ontario); Port Huron (Michigan)/Sarnia (Ontario); Champlain (New York)/Lacolle (Quebec); Blaine (Washington)/Pacific Highway (British Columbia); Stanstead (55) (Quebec)/Derby Line (Vermont); St. Armand/Phillipsburg (Quebec)/Highgate Springs (Vermont); Lansdowne (Ontario)/Alexandria Bay (New York); Emerson (Manitoba)/Pembina (North Dakota); North Portal (Saskatchewan)/Portal (North Dakota); and Coutts (Alberta)/Sweetgrass (Montana).162 It should be available at all major commercial crossings by the end of 2004.163

Border officials told the visiting ABA delegations that FAST would succeed only if corporations witnessed its benefits. At the time of the delegation’s visit to Detroit only 10 percent of traffic had signed up for FAST, a far lower percentage than for C-TPAT.

2. Customs-Trade Partnership Against Terrorism (C-TPAT) and Partners in Protection (PIP)

C-TPAT attempts to build public-private partnerships that strengthen security along supply chains to minimize the risk of terrorist attacks. Participants gain access to a variety of benefits, such as reduced numbers of inspections and decreased border crossing times.

In order to participate, applicants must sign an agreement that commits them to: (1) complete a comprehensive self-assessment of their supply chain using prescribed security guidelines; (2) complete a security profile questionnaire; (3) develop, implement, and enhance their security measures; and (4) communicate C-TPAT guidelines to other companies in the supply chain.

161Press Release, U.S. Dep’t of Homeland Security, United States-Canada Free and Secure Trade Program the FAST Program (Sept. 9, 2002), available at http://www.dhs.gov/dhspublic/display?theme=43&content=349&print=true (last visited Nov. 8, 2004).162Canada Border Services Agency, Gov’t of Canada, The Free and Secure Trade (FAST) Program, available at http://www.cbsa-asfc.gc.ca/import/fast/menu-e.html (last updated Mar. 7, 2005).163CANADA’S NATIONAL SECURITY POLICY, supra note 67, at 43.

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Once admitted, a company bears primary responsible for achieving and maintaining program compliance. Customs Validation Teams review a certified company’s security program to ensure that it is abiding by C-TPAT requirements.164 “Validations” may be initiated based on import volume, security-related anomalies, strategic threat posed by geographic regions, other risk-related information, or as a matter of routine oversight.165 C-TPAT participants receive a 30-day advance written notice prior to the beginning of validation.166 Security experts have criticized programs like C-TPAT for operating without adequate government oversight or verification.167

The Bush Administration’s 2005 budget includes $15.2 million increase in C-TPAT funding.168

Like its U.S. counterpart, Canada’s PIP program requires participants to sign partnership agreements and submit self-assessments of their security systems. Applicants must answer questions on physical security, personnel, and service providers. PIP also requires a memorandum of understanding (MOU) between CCRA and the participating company. The MOU contains similar language to the C-TPAT partnership agreement. Participants must also agree to appoint CCRA and PIP company representatives and to adopt procedures to alert CCRA to potential violations.

3. NEXUS

The NEXUS program allows pre-approved, low-risk travelers to be processed with little delay through the use of specially equipped commuter lanes.169 Participants receive an identification card which allows them to use NEXUS-dedicated lanes in the United States and Canada and to cross the border without routine customs and immigration inquiries.170 The

164U.S. CUSTOMS & BORDER PROTECTION, U.S. DEP’T OF HOMELAND SECURITY, C-TPAT VALIDATION PROCESS FREQUENTLY ASKED QUESTIONS (Mar. 3, 2003) available at http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/ctpat/validation_process_faq.ctt/validation_process_faq.pdf (last visited Feb. 22 2004). 165Id. 166Id. 167Cargo Containers: The Next Terrorist Target?: Hearing Before the Senate Governmental Affairs Comm., 108th Cong. (Mar. 20, 2003) (testimony of Stephen E. Flynn, Senior Fellow in National Security Studies and Director, Council on Foreign Relations Independent Task Force on Homeland Security Imperatives) hereinafter Flynn Testimony of Mar. 20, 2003.168Press Release, U.S. Dep’t of Homeland Security, DHS Announces FY 2005 Budget (Feb. 2, 2004), available at http://www.whitehouse.gov/news/releases/2004/02/print/20040202-7.html (last visited June 29, 2004) hereinafter DHS FY 2005 Budget Announcement.169The first NEXUS lane opened as a pilot between Port Huron, Michigan, and Sarnia, Ontario, in November 2000. The pilot was suspended in the wake of September 11th, but the program is now part of the Smart Border Agreement. See Press Release, Canada Border Services Agency, Gov’t of Canada, U.S.-Canada Mark Opening of Newest NEXUS Lanes (June 26, 2002), available at http://cbsa-asfc.gc.ca/newsroom/releases/2002/jun/nexus-e.html (last visited June 29, 2004) hereinafter Canada Border Services Agency NEXUS News Release. 170U.S. Customs & Border Protection, U.S. Dep’t of Homeland Security, United States-Canada NEXUS Program, available at http://www.cbp.gov/xp/cgov/travel/frequent_traveler/nexus.xml

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program is open to U.S. and Canadian citizens and permanent residents, as well as to visa holders who can demonstrate a need to use NEXUS lanes.171

NEXUS operates at 10 high-volume border crossings: Pacific Highway (British Columbia)/Blaine (Washington); Douglas (British Columbia)/Peace Arch (Washington); Boundary Bay (British Columbia)/Point Roberts (Washington); Bluewater Bridge (between Sarnia, Ontario, and Port Huron, Michigan); Ambassador Bridge (between Windsor, Ontario, and Detroit, Michigan); Peace Bridge (between Fort Erie, Ontario, and Buffalo, New York); International Tunnel (between Windsor, Ontario, and Detroit, Michigan); Rainbow Bridge (between Niagara Falls, Ontario, and Niagara Falls, New York); Whirlpool Bridge (between Niagara Falls, Ontario, and Niagara Falls, New York) Route 15 (between Lacolle, Quebec, and Champlain, New York); and St. Armand-Phillipsburg (Quebec) and Highgate Springs (Vermont).172

Border officials extensively screen NEXUS applicants. One criminal conviction, warrant, or customs violation disqualifies an applicant from participation. Officials regularly run the names of NEXUS participants against the National Crime Information Center (NCIC) database.

4. Advance Passenger Information Programs

Both the United States and Canada have implemented automated systems that collect passenger data and use it to identify individuals who may pose a security threat. The U.S. Advance Passenger Information System (APIS) program, created in 1988, applies to both air and sea carriers. The Canadian Advance Passenger Information/Passenger Name Record (API/PNR) program focuses on air travel, but will ultimately cover all modes of travel.

APIS performs database queries on passengers and crew members in advance of their arrival in or departure from the United States. In November 2001, the Aviation and Transportation Security Act173 was signed into law, requiring commercial air and sea carriers to transmit APIS data on all passengers and crew members to CBP. For air carriers, passenger data must be transmitted within 15 minutes of a flight’s departure, while crew member data can be submitted at any time prior to departure. For sea carriers, data transmission deadlines correspond to the voyage’s duration. Once transmitted, APIS data is checked against the Interagency Border Inspection System, a combined federal law enforcement database containing information from

(last visited Feb. 1, 2005). NEXUS members can still be examined, but this does not occur as a matter of course. 171Canada Border Services Agency NEXUS News Release, supra note 169.172Canada Border Services Agency, Gov’t of Canada, NEXUS Highway Program—Frequently Asked Questions, available at http://cbsa-asfc.gc.ca/travel/nexus/faq-e.html#5 (last updated Jan. 19, 2005).173Pub. L. No. 107-71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.). Passenger data was transmitted on a strictly voluntary basis when APIS was initiated in 1988. After September 11, 2001, participation in APIS has been mandatory.

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CBP and 21 other federal agencies, and the NCIC database.174

Like its U.S. counterpart, the Canadian API/PNR program seeks to prevent high-risk travelers from reaching Canada’s borders. The API program collects basic data and identifies a traveler at check-in. The PNR program, which complements API, tracks data in carrier reservation systems. PNR information identifies passengers upon arrival who need further examination or who may constitute a future threat.175 The PNR program began in July 2003.

5. U.S.-Visitor and Immigration Status Indicator Technology

The U.S.-Visitor and Immigration Status Indicator Technology (U.S.-VISIT) program,176

designed as a comprehensive entry-exit system, has four major goals: (1) to enhance the security of U.S. citizens and visitors; (2) to expedite legitimate travel and trade; (3) to ensure the integrity of the U.S. immigration system; and (4) to safeguard the personal privacy of visitors to the United States.177

Under the program, inkless fingerprints and digital photos are taken of visitors who need a visa to enter the United States.178 When leaving the country, visitors must use self-service kiosks to scan their travel documents and repeat the fingerprinting process.179 After a visitor has “checked out,” this information is added to his or her travel record to demonstrate compliance and record the visitor’s status in anticipation of future visits.

Arrival and departure records are stored in a central system called the Arrival/Departure Information System. This data is updated continuously, so that U.S.-VISIT can track whether a visitor overstays his or her allotted length of stay. The information gathered by the program is available to CBP officers at ports-of-entry, special agents at ICE, USCIS, U.S. consular offices, and other federal, state, and local law enforcement personnel.

174Website, U.S. Customs & Border Protection, U.S. Dep’t of Homeland Security, Advance Passenger Information System (APIS) Fact Sheet, available at http://www.cbp.gov/xp/cgov/travel/inspections_carriers_facilities/apis/apis_factsheet.xml (last visited Feb. 1, 2005). 175Fact Sheet, Canada Border Services Agency, Gov’t of Canada, Advance Passenger Information/Passenger Name Record (Jan. 2004), available at http://www.cbsa-asfc.gc.ca/newsroom/factsheets/2004/0124passenger-e.html (last visited Nov. 10, 2004). 176U.S. immigration legislation in 1996 required the creation of a comprehensive entry/exit system by 2005. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 3009, § 110 (codified at 8 U.S.C. § 1365(a) (1996)).177Press Release, U.S. Dep’t of Homeland Security, Fact Sheet: U.S.-VISIT, available at http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0629.xml (last updated Feb. 24, 2005).178Id.179Visa holders will be required to document their departure from the United States only if they leave through an airport or seaport that has U.S.-VISIT exit capability.

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By January 5, 2004, U.S.-VISIT had become operational at 115 airports and 14 seaports. The program is expected to be in place at the 50 most highly trafficked land ports-of-entry by December 31, 2004, and at all ports of entry by December 31, 2005. In evaluating U.S.-VISIT’s first phase, the U.S. General Accounting Office concluded that the program had not put in place “the kind of rigorous and disciplined management controls that are typically associated with successful programs, such as effective test management and configuration management practices.”180 Several border officials expressed the need for more staff to meet the increased workload created by U.S.-VISIT. Officials would not comment on whether they believed the program would be cost-effective.

U.S.-VISIT initially applied to foreign nationals who needed a visa to visit the United States, but on September 30, 2004 DHS expanded the program to include citizens from 27 “visa waiver” countries.181 Once U.S.-VISIT is fully in place, targeted programs such as the National Security Entry-Exit Registration System will end.

The DHS FY 2005 budget provided for $340 million in U.S.-VISIT funding, 182 roughly the same amount that was spent on the program in FY 2004.183 In its early stages, the program has been credited with the arrest of several criminals.184

6. National Security Entry-Exit Registration System

The National Security Entry-Exit Registration System (NSEERS) program currently requires the registration of nationals from five countries (mostly temporary visitors) and anyone else who DHS identifies as being of interest when they arrive. Registration entails fingerprints, photographs, and interviews at secondary inspection. In addition, those registered must exit the country at the port they entered. In 2002 and 2003, NSEERS also required male non-immigrants (age 16 or over) from 25 countries to register either at a U.S. port-of-entry (“POE registration”) or at a local office of DHS Immigration and Customs’ Enforcement (ICE) (“call-in registration”). The program was intended to collect detailed information about the background and purpose of an individual’s visit to the United States, to verify his location and activities, and to confirm his departure.

180U.S. GENERAL ACCOUNTING OFFICE, HOMELAND SECURITY: FIRST PHASE OF VISITOR AND IMMIGRATION STATUS PROGRAM OPERATING, BUT IMPROVEMENTS NEEDED 9, GAO-04-589 (May 2004), available at http://www.gao.gov/new.items/d04586.pdf.181Website, U.S. Dep’t of Homeland Security, U.S.-VISIT FAQs: Visa Waiver Countries, available at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0443.xml (last visited Nov. 3, 2004). 182DHS FY 2005 Budget Announcement, supra note 168.183Review of U.S. VISIT Border Security Program: Hearing Before the House Select Comm. on Homeland Security, Subcomm. on Infrastructure and Border Security, 108th Cong. (2004) (testimony of Asa Hutchinson, Under Secretary of Dep’t of Homeland Security, Directorate of Border and Transp. Security).184Id.; Sara Kehaulani Goo, Security Program Collars Criminals, WASH. POST, Jan. 29, 2004, at A09.

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DHS has since suspended its 30-day and one-year re-registration requirements in anticipation of the implementation of U.S.-VISIT.185 It may still require individual registrants or groups of registrants to re-register.186 The NSEERS program—which has been widely criticized—is discussed at greater length below.

7. Container Security Initiative

Roughly 90 percent of the world’s cargo moves by container.187 Each year, more than 20 million 40' by 8' by 8' cargo containers enter the United States on ship, truck, and train.188 It takes five agents three hours to conduct a thorough inspection of a single container. It would take six months to inspect one day’s shipments of containers to the United States.189 As a result, only a small percentage of containers—5.2 percent of sea containers, 15.1 percent of truck containers, and 22.6 percent of rail containers—receive even a brief inspection.190 An attack using a container would likely shut down the shipment of all containers for a temporary period, leading to billions of dollars in losses.

The Container Security Initiative (CSI) addresses the vulnerability presented by incoming ship containers. The CSI seeks to: (1) identify “high-risk” containers using advance electronic information; (2) pre-screen containers at foreign ports; (3) use advanced technology (such as radiation detectors and large-scale radiographic imaging machines) to identify dangerous cargo; and (4) develop and use “smart” and secure containers.191 The programs has become operational in 26 international seaports.192

8. Advance Electronic Presentation of Cargo Manifest Information and Advance Commercial Information

On January 5, 2004, the United States began to require advance electronic presentation of cargo manifest information for all modes of transportation.193 Once manifests are electronically

185Suspending the 30-Day and Annual Interview Requirements from the Special Registration Process for Certain Nonimmigrants, 68 Fed. Reg. 67,578 (Dec. 2, 2003) (to be codified at 8 C.F.R. pt. 264).186Id. 187Maggie Myers, Secretary Ridge Announces Container Security Initiative’s Phase II, CUSTOMS AND BORDER PROTECTION TODAY (U.S. Dep’t of Homeland Security, Sept. 2003), available at http://www.customs.gov/xp/CustomsToday/2003/september/csi_phase2.xml (last visited June 17, 2004).188Flynn Testimony of Mar. 20, 2003, supra note 167.189Id.190BORDER SECURITY: INSPECTIONS PRACTICES, POLICIES AND ISSUES, supra note 14, at 45.191Bonner Testimony, supra note 1.192Fact Sheet, U.S. Customs & Border Protection, U.S. Dep’t of Homeland Security, Cargo Container Security—U.S. Customs and Border Protection Reality (Oct. 20, 2004), available at http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/factsheet_container_security.xml (last visited Nov. 5, 2004).193Required Advance Electronic Presentation of Cargo Information, 68 Fed. Reg. 68,140 (Dec. 5,

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submitted, they are processed at CBP’s National Targeting Center (NTC) through its Automated Targeting System (ATS). The ATS identifies high-risk shipments that may require additional screening or physical inspection. Advance information regarding inbound truck cargo must be supplied one hour prior to arrival in the United States via a CBP-approved data-interchange service.194 Sea carriers must transmit manifest information to CBP via the Vessel Automated Manifest System within 24 hours in advance of lading at foreign ports of origin.195

Like its U.S. equivalent, Canada’s Advance Commercial Information (ACI) initiative will require key data to be transmitted electronically before goods arrive in Canada. The initiative will be implemented in phases, beginning with marine cargo in April 2004.196 Future phases will require advance electronic cargo and conveyance information for all transportation modes. Current proposals require advance information regarding rail cargo to be submitted two hours prior to arrival and information relating to highway cargo (non-FAST shipments) to be submitted one hour prior to arrival. There will be no advance reporting requirement for FAST shipments.

9. Computer-Assisted Passenger Pre-Screening IIThe Computer-Assisted Passenger Pre-Screening II (CAPPS II) program was designed to authenticate travelers’ identities and to perform risk assessments based on undisclosed criteria. Its predecessor program, CAPPS, had selected several of the 9/11 terrorists, but at the time this only triggered the screening of checked bags (one per passenger).197

Under CAPPS II, airlines would have asked passengers for an expanded amount of reservation information, including full name, date of birth, home address, and home telephone number.198 The CAPPS II system would then have verified the identity of the passenger and conducted a risk assessment using commercially available data and intelligence information. The assessment would have resulted in a recommended screening level, either no risk, unknown or elevated risk, or high risk. Once the system had computed a traveler’s risk score, it would send an encoded message to be printed on the boarding pass indicating the appropriate level of screening. By early 2004, the development of CAPPS II had fallen significantly behind its original schedule.199 In July 2004, DHS Secretary Tom Ridge announced that CAPPS II had been terminated due to privacy and technology concerns.200 The privacy concerns revolved

2003) (to be codified at 19 C.F.R. pts. 4, 103, 113, 122, 123, 178 and 192). 194Id.195Id.196Canada Border Services Agency, Gov’t of Canada, Advance Commercial Information (ACI), available at http://www.cbsa-asfc.gc.ca/import/advance/menu-e.html (last visited Feb. 20, 2004). 197THE 9/11 COMMISSION REPORT, supra note 11, at 2, 4, 84.198Press Release, U.S. Dep’t of Homeland Security, Fact Sheet: CAPPS II at a Glance (Feb. 12, 2004), available at http://www.dhs.gov/dhspublic/display?content=3162 (last visited Feb. 21, 2004). 199U.S. GENERAL ACCOUNTING OFFICE, AVIATION SECURITY: COMPUTER-ASSISTED PASSENGER PRESCREENING SYSTEM FACES SIGNIFICANT IMPLEMENTATION CHALLENGES 9-11, GAO-04-385 (Feb. 2004), available at http://www.gao.gov/new.items/d04385.pdf. 200Mimi Hall & Barbara DeLollis, Plan to Collect Flier Data Cancelled, USA TODAY, July 15, 2004, at 1A.

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around the government’s non-disclosure of the sources of information to be used in CAPPS II, the lack of access by citizens to personal information about them, and the inability to correct inaccurate information.201

10. Enhancement of Pre-9/11 Integrated U.S.-Canada Enforcement Efforts: Integration Border Enforcement Teams, Joint Facilities, and Local Law Enforcement Efforts

Bi-national border control programs and law enforcement initiatives at national, regional, and local levels have long been a part of life along the Canada-U.S. border. These efforts continue, but with increased intensity and a heightened emphasis on security.

Integrated Border Enforcement Teams (IBETs) exemplify how joint law enforcement initiatives have expanded since the September 11th attacks. IBETs are comprised of U.S. and Canadian law enforcement, immigration and customs officials. Originally tasked with tracking and handling cross-border crimes in targeted areas (two sites prior to September 11th), they now operate in 14 sites and their mandate has expanded to encompass terrorist acts and infiltration.

The United States and Canada also share border facilities, including large-scale commercial facilities at Osoyoos (British Columbia)/Oroville (Washington) and Coutts (Alberta)/Sweetgrass (Montana).

Localities in both nations are also coordinating efforts (independent of the national governments) to ensure the security of their bi-national border communities. For example, in December 2003, the Premier of Quebec and the Governor of Vermont signed agreements to share local law enforcement information and engage in joint efforts to protect the border.

IV. HUMANITARIAN ISSUES RELATED TO THE CANADA-U.S. BORDER IN THE POST-9/11 ERA

The United States and Canada take pride in their historically generous immigration policies. More than 18 percent of Canadians202 and 11 percent of U.S. residents are immigrants.203

Between 1991 and 2000, Canada admitted 2.2 million immigrants and the United States admitted

201Airline Passenger Prescreening Proposal: Hearing Before the House Comm. on Transp. and Infrastructure, Subcomm. on Aviation, 108th Cong. (2004) (statement of David L. Sobel, General Counsel, Electronic Privacy Information Center).202Immigrants in Canada: Census 2001 Highlights, THE MONITOR (Citizenship and Immigration Canada, Gov’t of Canada, Summer 2003), available at http://www.cic.gc.ca/english/monitor/issue02/06-feature.html (last visited June 21, 2004) hereinafter Immigrants in Canada: Census 2001 Highlights; see also, Brian Ray, Canada: Policy Legacies, New Directions, and Future Challenges, MIGRATION INFORMATION SOURCE (May 2002), available at http://www.migrationinformation.org/Feature/display.cfm?ID=20 (last visited June 18, 2004).203 U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, THE FOREIGN POPULATION IN THE UNITED STATES: MARCH 2002, at 1 (Feb. 2003), available at http://www.census.gov/prod/2003pubs/p20-539.pdf (last visited June 30, 2004).

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9.1 million.204 The foreign born comprise 20 percent of Canada’s work force205 and were responsible for 70 percent of Canada’s labor force growth in the 1990s.206 Similarly, immigrants comprise 14 percent of the U.S. workforce,207 filled 50 percent of the new U.S. jobs between 1990 and 2001,208 and will be crucial to meeting the projected 21.3 million U.S. job increase between 2002 and 2012.209

Both nations also enjoy a proud tradition of providing haven for those fleeing persecution and need immigration to address the challenges of an aging population, what one Canadian official called a “demographic time bomb.” According to Canadian officials, by 2012, any increase in the Canadian workforce will have to come from immigrants. By 2025, any increase in the Canadian population at large will come from immigration. The traditional openness of the United States and Canada to immigrants and refugees makes several post-9/11 immigration developments particularly jarring.

A. Safe Third Country Asylum Agreement

The U.S.-Canada Safe Third Country Asylum Agreement requires asylum seekers who arrive at a land port-of-entry to seek protection in the first country of arrival (referred to as the “country of last presence.”)210 Thus, the asylum-seeker from Colombia who visits Miami on his way to join an expatriate community in Toronto will now be returned by Canadian officials to the United States. This provision will particularly impact Canadian asylum-seekers. An estimated 13,500 persons seek asylum in Canada at ports-of-entry, compared to just 200 persons who seek asylum in the United States at U.S.-Canada ports-of-entry.211

204STATISTICS CANADA, GOV’T OF CANADA, LONGITUDINAL SURVEY OF IMMIGRANTS TO CANADA: PROCESS, PROGRESS AND PROSPECTS (2003), available at http://www.statcan.ca/english/freepub/89-611-XIE/background.htm (last visited Mar. 11, 2005); U.S. DEP’T OF HOMELAND SECURITY, 2002 YEARBOOK OF IMMIGRATION STATISTICS 14 (2003).205Susan Munroe, The Canadian Workforce, CANADA ONLINE, available at http://canadaonline.about.com/cs/statistics/a/workforcestats.htm (last visited June 21, 2004).206Immigrants in Canada: Census 2001 Highlights, supra note 202.207ANDREW SUM, ET AL., IMMIGRANT WORKERS AND THE GREAT AMERICAN JOB MACHINE: THE CONTRIBUTIONS OF NEW FOREIGN IMMIGRATION TO NATIONAL AND REGIONAL LABOR FORCE GROWTH IN THE 1990S, at 16-17 (Center for Labor Market Studies, Northeastern University, 2002), available at http://www.nupr.neu.edu/12-02/immigration_BRT.PDF.208See id.209Daniel E. Hecker, Occupational Employment Projections to 2012, 127 MONTHLY LAB. REV. No. 2, at 80-81 (U.S. Bureau of Labor Statistics 2004).210Article 4(1) of the Agreement provides that “the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry . . . and makes a refugee status claim.” Safe Third Country Asylum Agreement, supra note 29, at art. 4(1).211Letter from Kolude Doherty, Regional Representative, United Nations High Commissioner for Refugees, to Chuck Adkins-Blanch, General Counsel, Executive Office for Immigration Review (May 7, 2004) (on file with author) hereinafter Letter from Kolude Doherty to Chuck Adkins-Blanch; see also The U.S.-Canada “Safe Third Country” Agreement: Hearing Before the House

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Article 4(2) of the Agreement sets forth exceptions for: (1) persons with at least one family member in the receiving country who has been accepted as a refugee or has lawful status, other than as a visitor; (2) persons with at least one family member in the territory of the receiving country who is over 18 years of age and has a refugee claim pending; (3) unaccompanied minors; or (4) persons who arrived in the receiving country with a validly issued visa or other valid admission document (other than a transit visa), or who did not have a visa because none was required to enter.212

The Agreement provides that either country may adjudicate a refugee claim “where it determines that it is in its public interest to do so.”213 In addition, no claimant may be removed to a country outside Canada or the United States until the claim has been determined by one of the two countries.214

Since the Agreement does not apply to persons who enter the country illegally, immigrant rights groups and border officials predicted that it would lead to increased illegal migration to Canada. As one Canadian official put it, “only the most foolish” asylum-seekers will present themselves at the border. Many will cross illegally so that they can make a claim, circumventing Canada’s ports-of- entry.

The Agreement has been criticized for weakening the refugee protection regime of both countries. Amnesty International has called the “country of last presence” provision a “fundamental flaw.”215 Since many flights to Canada, including virtually all from Latin America, stop in the United States, the Agreement will effectively “trap” immigrants in the U.S. system. Human rights groups have also criticized the Agreement for doing little to further national security.216 It has been characterized as a “bargaining chip in the larger U.S.-Canada border discussions” that will allow Canada “to shift a significant portion of its asylum case load to the United States.”217 One Canadian official said that the Agreement was intended to ensure that the

Comm. on the Judiciary, Subcomm. on Immigration, Border Security, and Claims, 107th Cong. (2002) (testimony of Bill Frelick, Director, Refugee Program, Amnesty Int’l USA) hereinafter Frelick Testimony.212The proposed U.S. regulation creates an exception from the Agreement for, among others: (1) migrants with a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who has been granted asylum, refugee or other lawful status (except visitor status); and (2) migrants with a U.S. family member (as defined above) who is 18 or older and has a pending asylum claim. Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 Fed. Reg. 10620, 10621, 10627 (Mar. 8, 2004) (to be codified at 8 C.F.R. pts. 208 & 212). 213Safe Third Country Asylum Agreement, supra note 29, at art. 6.214Id. at art. 3. 215Frelick Testimony, supra note 211.216Id.217HUMAN RIGHTS FIRST, COMMENTS OF THE LAWYERS COMMITTEE FOR HUMAN RIGHTS ON THE PROPOSED SAFE THIRD COUNTRY AGREEMENT 1 (July 24, 2002), available at

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United States did not perceive Canada’s asylum system as a security threat. Other critics argue that it will make the border less secure by creating “inefficiencies, burdens, and delays” and by “undermining orderly and secure procedures.”218

Attorneys at Freedom House and VIVE, Inc. argued that the Agreement would be acceptable only if the two nations’ asylum systems were compatible. In their judgment, certain asylum-seekers—those with claims of persecution based on their gender, persons who run afoul of the U.S. one-year asylum filing rule, and persons from select countries—would be more likely to receive asylum in Canada. These persons would be disadvantaged by the Agreement. In addition, Canada’s social safety net for asylum-seekers (refugees) has traditionally been more generous than the U.S. system.219 In the circumstances, asylum-seekers may wish to seek refugee status in Canada, but will not be permitted to do so unless they qualify for an exception or they enter Canada illegally.

The Safe Third Country Asylum Agreement should not be confused with a longstanding “reciprocal agreement” between the United States and Canada. Under this reciprocal agreement, a foreign national who enters one country from the other can be returned to the sending country, rather than to his country of birth. The reciprocal agreement also creates anomalies and hardships. A Committee delegation learned of the case of an Angolan family who passed through the United States only to be denied refugee status in Canada. Under the reciprocal agreement, Canada deported the family to the United States where the 16-year-old son was placed in a youth detention center in Spokane, the 17- and 18-year-old daughters were deported one day to Buffalo, and the mother and an infant were deported a different day.

B. Special Registration

Between September 2002 and April 2003, the United States required males (over age sixteen) from 25 countries, who entered the country on temporary visas before September 30, 2002, to be registered, photographed, fingerprinted, and interviewed. As of September 30, 2003, the NSEERS program had led to the arrest and detention of 2,879 persons who voluntarily came forward, including many awaiting permanent residency based on approved family-based visa petitions, and the United States had initiated removal proceedings against 13,799 persons.220

Persons in the third “call-in” group—Pakistanis and Saudi Arabians—were initially required to register from January 13 to February 21, 2003.221 The registration date was subsequently

www.humanrightsfirst.org/refugees/comment_safe_thirdfinal.pdf (last visited June 17, 2004).218Id. at 3.219Committee delegations also learned that Canadian provincial governments have traditionally funded legal aid to refugees, but that this commitment has diminished in recent years. 220Changes to National Security Entry/Exit Registration (NSEERS), supra note 30.221The Department of Justice announced the specified countries in four “call-in” groups: (1) Iran, Iraq, Libya, Sudan, or Syria; (2) Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen; (3) Pakistan and India; and (4) Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. Website, U.S. Immigration & Customs Enforcement, U.S. Dep’t of Homeland Security, Special Registration Archives (last modified Feb. 2, 2005), at

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extended to March 21, 2003.

On its May 2003 trip to Buffalo, the Committee delegation learned of the flight to Canada of thousands of Pakistani nationals—and, to a lesser extent, Bangladeshis and Egyptians—to avoid U.S. registration requirements.222 VIVE, Inc., for example, provided shelter to 146 Pakistanis in December 2002, 414 in January 2003, 513 in February 2003, and 129 in March 2003. It reported that the prospect of detention and deportation had terrified the Pakistanis. Although the registration requirements only applied to men, entire families—many with small children—sought shelter as a first step to seeking refugee status in Canada. The phenomenon occurred across the Canada-U.S. border. At Detroit-Windsor, Freedom House reported a similar spike in Canadian refugee claims by Pakistani, Bangladesh, and nationals from other countries, coinciding with special registration deadlines. During peak special registration months, Freedom House handled roughly 140 cases per month, compared to its normal 40 cases.

Human rights groups have challenged “special registration” as a potential violation of international law protections against discrimination.223 Whether or not this claim has merit, it seemed extraordinary to the Committee delegations that well-established U.S. residents—many of whom had overstayed their temporary visas—were fleeing in large numbers to Canada.224

Counter-terror experts have criticized the shortsightedness of law enforcement tactics that alienate immigrant populations whose active support is crucial to the war on terror. Vincent Cannistraro, former head of the U.S. Central Intelligence Agency’s Counter-Terrorism Center has said:

In many respects when we alienate communities, particularly immigrant communities, we undermine the very basis of our intelligence collection abilities because we need to have the trust and cooperation of people in those communities . . . . If the FBI conducts sensitive interviews with community leaders at the same time that that community’s members have been rounded up by INS, forced to report—and everyone who reports knows that if they are illegal, they are not a document holder, that they can and will be deported—we have really eliminated the ability to get information that we really need.225

In this regard, the call-in registration program worked at cross-purposes to the security concerns that led to its creation. As staff at VIVE, Inc. and Freedom House pointed out, the thousands fleeing “special registration” never presented themselves to U.S. officials for a security

http://www.ice.gov/graphics/specialregistration/archive.htm.222See Traci Hukill, A Safe Haven Turns Hostile, ALTERNET, Mar. 27, 2003, available at http://www.alternet.org/story/15480 (last visited May 3, 2004).223Issue Brief, Amnesty Int’l USA, Special Registration of Immigrants May Violate International Law Standards (Jan. 2003) (on file with author).224Persons fleeing to Canada also included U.S. lawful permanent residents, U.S. citizen children, and persons on valid non-immigrant visas.225CMS SPECIAL REPORT: IMMIGRATION POLICY, LAW ENFORCEMENT AND NATIONAL SECURITY, supra note 92, at 12.

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screening. The government never learned their identities or their reasons for being in the country, which was the initiative’s purpose.

At the same time, the U.S. “special registration” program overwhelmed the Canadian refugee system, representing a rare example of poor coordination between the United States and Canada on migration issues. Canadian officials turned back persons who appeared at the border for refugee interviews.226 According to United Nations High Commissioner for Refugees, the United States detained many of those who were turned away, and U.S. immigration judges refused to release many detainees for their scheduled refugee interviews in Canada.227 This created great hardship for the migrants and inefficiencies for both the Canadian and U.S. systems. According to VIVE, Inc. residents of local shelters who made appointments for Canadian refugee interviews had to wait in shelters or border hotels for up to two months. If the U.S.-Canada Safe Third Country Asylum Agreement had been in effect, many of these migrants would have been prevented from seeking asylum in Canada and then barred from asylum in the United States based on the U.S. one-year (from arrival) filing deadline.228

A similar surge in refugee claims to Canada preceded IRPA’s implementation on June 28, 2002. According to VIVE, Inc., thousands of refugee claimants tried to enter Canada prior to this date, some apparently confusing IRPA with the Safe Third Country Asylum Agreement between the United States and Canada.229 In May 2002, VIVE, Inc. had 763 new arrivals, its largest number up to that point, and in June 2002 it had 730 arrivals. These included 276 Colombians in May and 235 in June. As with the “special registration” program, this surge in refugee applications overwhelmed the capacity of the Canadian refugee system.

The NSEERS program also raised serious concerns about the potential treatment of Canadian citizens with dual citizenship in targeted countries. In response, the U.S. Ambassador to Canada assured the Canadian government that those entering the United States with Canadian passports would not “be treated any differently depending on where they were born.”230

However, U.S. officials have also indicated that while place of birth will not automatically trigger registration requirements for Canadian citizens, it reserves the right to register select Canadians.231

C. Extraordinary Rendition: The Case of Canadian Citizen Maher Arar

226Catherine Solyom, Help Runs Out for Asylum Seekers: Pakistanis in U.S., Vermont Volunteers Blame Canada, THE GAZETTE (Montreal, Quebec), Mar. 12, 2003, at A8.227Letter from Kolude Doherty to Chuck Adkins-Blanch, supra note 211.2288 U.S.C. § 1158(a)(2)(B) (2002).229At Canada-U.S. Border Point, Refugee Claimants Wait and Hope to Enter Canada, MONTREAL GAZETTE, June 27, 2002, at Je 27’02.230DeNeen Brown, U.S. Reacts to Canada’s Concern on Border Policy, WASH. POST, Nov. 1, 2002, at A29.231Press Release, U.S. Dep’t of Justice, Statement of Barbara Comstock, Director of Public Affairs, Regarding the National Security Entry-Exit Registration System (Nov. 1, 2002), available at http://www.usdoj.gov/opa/pr/2002/November/02_opa_638.htm (last visited June 29, 2004).

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The case of Maher Arar, a dual citizen of Canada and Syria, severely strained the U.S.-Canada partnership on national security and immigration. Arar came to Canada from Syria with his parents as a teenager.232 He earned his college and master’s degrees in Canada, married a Canadian citizen (an immigrant from Tunisia), and the couple had two children. He worked for a Massachusetts-based technology firm. On September 26, 2002, he was returning to Canada from a family vacation through New York’s John F. Kennedy airport when U.S. immigration authorities detained him.233 After repeated requests, Arar was granted permission to make a telephone call. He called his mother-in-law, who informed Canadian officials of his detention.

After intensive interrogation in the United States over several days, Arar was expelled to Syria.234 He had asked to be deported to Canada, despite pressure by U.S. officials to agree to deportation to Syria. He repeatedly told U.S. officials that he would be tortured in Syria. Based on U.S. State Department reports, the claim was plausible. In its 2003 human rights report, the State Department reported:

During the year, the SHRC Syrian Human Rights Committee reported numerous cases of torture in custody . . . . Former prisoners and detainees, as well as the SHRC, reported that torture methods included administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyperextending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a chair that bends backwards to asphyxiate the victim or fracture the victim's spine. Torture was most likely to occur while detainees were being held at one of the many detention centers run by the various security services throughout the country, particularly while the authorities were attempting to extract a confession or information.235

Despite this record, Arar was flown to Jordan on October 9, 2002. Shortly thereafter, Jordanian officials turned him over to Syrian authorities. Canadian officials did not learn of Arar’s presence in Syria until on or about October 20, 2002. It was not for another year—until October 5, 2003—that Arar was released to Canadian officials in Syria. Following his return to Canada, Arar alleged that he had been severely tortured by Syrian officials, including beatings with cables.236 The worst torture reportedly occurred in his first days in Syrian custody, before

232Much of this chronology can be found in the complaint of Arar v. Ashcroft et. al, No. 1:04-CV-00249-DGT (E.D.N.Y. 2004).233Joan Fitzpatrick, Rendition and Transfer in the War Against Terrorism: Guantanamo and Beyond, 25 LOY. L.A. INT’L & COMP. L. REV. 457, 479-80 (2003).234Daniel J. Wakin, Threats and Responses: Deportations; Tempers Flare After U.S. Sends a Canadian Citizen Back to Syria on Terror Suspicions, N.Y. TIMES, Nov. 11, 2002, at A9.235 Country Report, U.S. Dep’t of State, Syria—Country Reports on Human Rights Practices: 2003, (Feb. 25, 2004), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27938.htm (last visited June 30, 2004).236Tom Cohen, Canadian Deported to Syria by United States Details Torture, Calls for Public Inquiry, ASSOCIATED PRESS, Nov. 4, 2003.

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Canadian officials visited him.

The removal of Maher Arar to Syria raises serious concerns about whether the U.S. treatment of certain suspected terrorists comports with international law. The United States and Canada are signatories to the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment and the International Covenant on Civil Rights and Political Rights.237 These instruments seek to ensure that persons are not removed to states where they would suffer torture and other human rights violations. In this case, Mr. Arar does not appear to have been offered the protections required by international law. His case exemplifies the need for adherence by the United States to its international obligations, as well as for close coordination between the two nations on security issues.

V. FINDINGS

It has become axiomatic that the goal of U.S.-Canada border relations, as enunciated in the “smart border” plan, should be “to enhance security . . . while facilitating the legitimate flow of people and goods.” The Committee recognizes the extraordinary security threats faced by both countries and the immense responsibility that this places on border officials. One official characterized border enforcement post-September 11th as “a game of one,” with little margin for error. The Committee also recognizes the importance of a relatively open border and generous immigration policies to the economic viability of both nations. Within this broad framework, the Committee has several findings.

• The immense volume of trade and traffic across the U.S.-Canada border and the fact that the automobile and other major industries have developed on the assumption that crossing the border will be expeditious and predictable makes draconian border enforcement policies untenable. Enforcement initiatives that slow border traffic even marginally will negatively impact on the economies of both nations. As the events of September 11th illustrated, the closure of the U.S.-Canada border, even for a short period of time, can have severe economic consequences.

• Economic security cannot be divorced from national security, a fact not lost on Al Qaeda

terrorists who select economic targets. A closed border would be self-defeating from a security perspective. It also would devastate bi-national communities, businesses, and families.

• Border and other immigration enforcement measures can play an important role in counter-terror efforts, but not in isolation. Intelligence, the linchpin of counter-terrorism, comes primarily from military, intelligence and law enforcement efforts, not from immigration control. Intelligence must be accessible to the appropriate immigration officials. With good intelligence, border officials have the possibility of intercepting a terrorist or preventing an attack.

237International Covenant on Civil Rights and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, 174.

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• It would be impossible to eliminate the risk of a terrorist attack at a border crossing or to prevent a determined terrorist from crossing. The volume of legal traffic, the difficulty of defending a 5,525 mile border and the inevitable resource limitations demand the adoption of a “risk management” approach to border security. Resources must be used in ways that limit the risk of terrorism as much as possible. Even before its incorporation into DHS, the U.S. Customs Service recognized that it could not inspect every car, truck or container. A useful byproduct of the transition to DHS may be the adoption of more targeted and cost-effective immigration enforcement tactics; i.e., those dealing with persons. A risk management approach will require careful planning and analysis of the effectiveness of all DHS programs on the border, but particularly large-scale initiatives like U.S.-VISIT.

• Enforcement initiatives and technologies that attempt to identify and address potential risks before they reach the border deserve support. Terrorist plots must be confronted and stopped at the earliest possible point. Once a plot reaches a border, it may be too late to stop it and an attack at a port-of-entry or at a target inside the country could be devastating. The border represents just one battle ground in what must be a transnational effort against a transnational threat.

• Government enforcement strategies must focus on high-risk traffic and must partner with frequent border crossers. Given resource limitations, the two nations need to enlist the support of organizations and individuals with a vested interest in a predictable and efficient border. However, initiatives like C-TPAT, PIP and CSI require more resources and staffing, and effective government oversight. They demand a “trust, but verify” approach.238 Counter-terrorism and enforcement responsibilities should not be delegated entirely to private corporations and individuals.

• Technology plays a crucial role as a “force multiplier” on the border. It does not and cannot replace human inspectors, but it makes their work more targeted and effective. The Committee was impressed by the commitment and professionalism of the many border officials it met. As these officials argued, increased resources for border enforcement should be tied to demonstrated needs, successful strategies, and new technology.

• The Committee did not find a persuasive security rationale for the Safe Third Country Asylum Agreement. Although perhaps narrower in scope than many realize, the Agreement will nonetheless preclude many migrants from seeking asylum in the country of their choice. The Committee did not see the value in weakening refugee protections, as the Agreement will do, for dubious or non-existent security reasons.

• The large-scale migration of Pakistanis and other nationals from the United States to Canada due to the U.S. “special registration” program argues for better bi-national coordination of immigration policies. Migrants fleeing from this program overwhelmed U.S. border shelters and strained the Canadian refugee system. Had the Safe Third

238 Flynn Testimony of Mar. 20, 2003, supra note 167.42

Country Asylum Agreement been in place at the time, many would have been returned to the United States, where they would have been barred from seeking asylum by the one-year asylum filing rule. Country-specific registration programs also raise weighty international law and civil liberties issues, and their effectiveness as counter-terror tools has been disputed.

• Identity and security screening should be conducted of all asylum-seekers in Canada and the United States. Canada’s efforts to address the security concerns raised about its immigration system should be commended. As its officials pointed out, Canada vets refugee candidates at the outset of their applications and has the option to detain security threats. Even prior to September 11th, Canada’s domestic and overseas watch lists were linked and Canada required a waiting period for visa applicants from high-risk locations. Canada also has a smaller undocumented population than the United States, meaning that it has far fewer residents who have not yet received a security vetting. Canada has had a pre-clearance program at overseas airports for more than a decade.

• The U.S. interception and deportation of Canadian citizen Maher Arar as he was attempting to transit to Canada through John F. Kennedy International Airport in New York raises grave human rights concerns. Arar was sent through Jordan to Syria where he allegedly suffered 10-months of interrogation and torture. This action undermined bilateral immigration and security strategies, and appears to have violated international law.

• The integration of the former U.S. Customs Service and INS into DHS appears to be progressing as smoothly as could be expected in its early stages. As some DHS officials argued, however, there will be a need for greater definition of roles and responsibilities as the transition continues. Managing the integration and growth of the DHS will be crucial. In particular, cross-training and supervisor training must remain a high priority. In addition, the comprehensive “check in/check out” program for visitors known as U.S.-VISIT must be adequately staffed and carefully evaluated.

• The development of the relationship between the new CBSA and the CIC is also a work in progress. CBSA and CIC must work together to manage and to improve the facilitation and enforcement aspects of the immigration process. This will be crucial to the success of Canada’s future immigration policies, as well as to its consideration of individual cases.

• The Canadian border officials with expertise in immigration should participate in the primary inspection process at ports-of-entry. These officials will be better qualified than customs officials to identify potential terrorists and criminals.

• Despite the key immigration and security measures adopted since September 11th, there is an ongoing risk and, indeed, a likelihood of additional terrorist attacks. This argues not for a more closed border (which would be counter-productive), but for careful planning that would mitigate the loss and disruption created by another attack.

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