Tuesday, May 16, 2006

Suddenly, it is all Inside the Beltway

Customs law used to be about classification and valuation, penalties and marking. These days, it seems CBP is just as likely to be caught up in some political mess as it is to be worried about basic legal compliance by importers and exporters.

Now that the U.S. Customs Service has morphed into a bureau of the Department of Homeland Security and swallowed chunks of the Immigration and Naturalization Service along the way, the agency seems to be much more about Washington and politics.

Several recent happenings show that to be true:

The on-again, off-again idea of merging Immigration and Customs Enforcement with Customs and Border Protection.

This is essentially putting the agency back together. Customs used to include Special Agents who's job it was to conduct investigations involving both criminal and civil violations. One would think that those hard working folks would have plenty of reasons to share systems and resources with the folks at Fines, Penalties, and Forfeitures; Regulatory Audit; and Field Operations. One would also expect that there might be some reason for coordinated management in the form of a single agency head. Why would you expect that? Maybe because it seemed to work just fine for about 200 years.

Apparently, since they have been separated, there have been spats between the agencies over the use of resources and priorities. Throw the Border Patrol into the mix and things get very complicated. Former Commissioner of Customs Bonner has said that there was never a good reason to separate the Agents from BP.

On May 11, there was a hearing on the topic. Several top officials testified that the agencies are getting along just fine under new-ish Secretary Chertoff. Acting Customs Commissioner Spero; ICE Assistant Secretary Myers, and ICE Assistant Secretary for Policy Stewart Baker all testified for the status quo. Seth Stodder, the former Director of Policy and Planning at CBP testified in favor of a merger. The links are to their testimony.

According to information from AAEI, it now appears that the merger is losing steam. The sub-committee chair Michael Rogers implied that he is seeing positive evolution of the agencies and favors taking a wait-and-see approach.

Tipping Mexico

In a somewhat bizarre story, several members of Congress have accused CBP of tipping of the Mexican government (via their consulate) of the location of volunteer organizations patrolling the border for illegal immigrants. CBP denies that the story is accurate, but at the same time says they have an obligation to inform foreign government of the location of their citizens who are "detained" in the U.S. This relates to the Vienna Convention.

The question someone will need to ask is whether being detained by a private party making what is essentially a citizen's arrest qualifies as a detention under the Convention. Sounds like a good law school project. At this point, CBP is denying that this is happening. We'll have to see if a threatened investigation ramps up. This could turn into an interesting issue.

Calling Out the Guard

Last night's presidential speech proposed sending 6,000 National Guardsmen to the border to assist the Border Patrol. This is an interesting use of the Guard which generally reports to the Governors. It can be federalized, as has been done to send troops and other support to Iraq and Afghanistan. This is supposed to happen in times of war or national emergency. I gather the immigration issue is considered the latter. This could be a political move to make the President look tough on illegals while he works on his guest worker program.

I wonder how the Guard feels about this. They must be pretty taxed by the continuing deployment abroad. Also, their traditional military role seems somewhat ill-suited to this task. After all, for the Army, border security is usually an issue when there are Panzers lined up on the other side not unarmed men, women, and children seeking a better life.

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