Letter to Reps. Thomas and Rangel on "The Customs Border Security Act of 2001"

The Honorable William Thomas, Chairman
Committee on Ways and Means
United States House of Representatives
2208 Rayburn House Office Building
Washington, DC 20515-0521 

The Honorable Charles Rangel, Ranking Member
Committee on Ways and Means
United States House of Representatives
2354 Rayburn House Office Building
Washington, DC 20515-3215 

October 25, 2001 

RE: H.R. 3129- Delete Sections 141 (Immunity for Customs Officials) and 144 (Opening Outgoing Mail) 

Dear Representatives Thomas and Rangel: 

We are writing to draw your attention to two provisions in H.R. 3129, "The Customs Border Security Act of 2001" that would weaken protections against racial profiling and other illegal searches and undermine the right to privacy in personal correspondence. 

Immunity for Customs Officials 

Section 141 is entitled "Immunity for United States Officials that Act in Good Faith." The provision amends 19 U.S. C. sec. 482 to provide any officer or employee of the United States, conducting a customs search of a person or property, immunity from "any civil damages as a result of such search if the officer or employee performed the search in good faith." This provision would apply to any Customs search of a person entering the United States whether that person enters by "vehicle, beast or person". See 19 U.S.C. sec. 482. 

The term "good faith" is not defined in the bill. An officer could engage in blatantly discriminatory conduct, but if he in "good faith" believes that he was justified in doing so he could not be held liable. To be sure, agents who act in good faith are less likely to be sued or held liable for their actions, but "good faith" should be a factor for the court to consider, not a flat bar to liability. The Supreme Court has repeatedly held that qualified immunity is the appropriate standard. Qualified immunity shields public officials performing discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. The reasonableness of an officer's behavior, not a subjective "good faith" standard, is the proper test for liability. Section 141 of H.R. 3129 would accord Customs officers a legal shield unavailable to any other law enforcement officer in the country. This provision would weaken protections against racial profiling and other illegal and unconstitutional searches by the Customs Service. 

Section 141 is under a section of the bill entitled "Antiterrorism Provisions." However, this provision has nothing to do with preventing terrorists from boarding airplanes. . Customs officers are not involved in the routine security searches of persons who are leaving the country, so are not, for example, involved in airline security searches of persons boarding planes. They are involved in searches of persons entering the country. While it is possible that a Customs official might find something in a search to identify a person entering the country as a terrorist, it is highly unlikely. There is no reason to expect that would-be terrorists, who are trying to enter the country, would draw attention to themselves by carrying weapons or contraband on their person. 

Civil lawsuits against government officials and agencies are an important deterrent to racial profiling and unconstitutional and unlawful searches. Individuals whose constitutional rights are violated may bring a suit under 42 U.S.C. § 1983 seeking damages and an injunction preventing the law enforcement agency from engaging in the illegal tactic in the future. Without the possibility of a lawsuit, individuals who have been treated in an unconstitutional manner by a government agency would have no redress, and the government agents would have less incentive to comply with the Constitution. Providing Customs officers with immunity is not likely to have any impact on decreasing terrorism, but it will increase the likelihood that innocent passengers will have their constitutional rights violated. 

The Customs Service should not be provided with immunity because it has a poor record on racial profiling, it routinely conducts particularly intrusive searches, and has broad authority to seize property. A March 2000 General Accounting Office report found that while black female U.S. citizens were nine times more likely than white female U.S. citizens to be subjected to x-ray searches by the Customs Service, these black women were less than half as likely to be found carrying contraband as white females. Black females were also more likely to be subjected to highly intrusive body cavity searches but were less likely to be found carrying contraband. Section 141 would exempt a Customs officer from liability for engaging in an illegal body cavity search and from liability for illegal seizures provided the officer acted in "good faith." 

In the aftermath of the GAO report, then Customs Commissioner, Raymond Kelly, instituted a number of policies to address the problem of racial profiling. In the months following the implementation of Kelly's policies, the number of searches conducted by customs personnel drastically decreased but the amount of contraband seized by customs officials did not. However, despite the decrease in the number of searches, minorities are still disproportionately subjected to them. The Customs Service has taken some steps to address racial profiling but it has not gone far enough. Granting Customs officers immunity at this time may have the effect of unraveling the progress that the Customs Service has achieved so far. 

Congress is currently considering bipartisan legislation to implement President Bush's call to "ban racial profiling." One of the many devastating consequences of the September 11 attacks is that Arab-Americans and persons perceived to be Arabs or of Middle Eastern descent, have been subjected to harassment, humiliating and degrading treatment, and violence. The President has cautioned both law enforcement and private persons against this kind of behavior. Now more than ever, they and other victims of racial profiling, need the full protection of the law available to redress constitutional violations. 

Privacy of Outgoing International Mail 

Section 144, "Border search authority for certain contraband in outgoing mail," would allow the U.S. Customs Service to open outbound international mail without a warrant. 

Under current law, the Customs Service is empowered to search, without a warrant, inbound mail handled by the United States Postal Service and packages and letters handled by private carriers such as Federal Express and the United Parcel Service. This "border exception" to the Fourth Amendment derives from the traditional authority of the sovereign to protect its borders against inbound contraband and to collect duties on inbound freight. 

The rationale for the border exception, however, does not support Customs officials' search of outgoing mail without a warrant. Instead, current law explicitly protects individual privacy in 39 U.S.C. Section 3623(d), which provides: 

"The Postal Service shall maintain one or more classes of mail for the transmission of sealed letters against inspection. ? No letter of such class of domestic origin shall be opened except under authority of a search warrant authorized by law." 

Section 144 does not directly amend this section of current law, but would contradict it by allowing Customs officials to open sealed, outbound international mail without a warrant. The section provides "mail sealed against inspection under the postal laws and regulations of the United States may be searched by a Customs officer ? upon reasonable cause to suspect that such mail contains?" certain contraband such as monetary instruments related to currency smuggling, drugs, firearms, obscene materials, and other illegal items. 

Section 144 would allow Customs officials to open the mail with "reasonable cause," a lower standard than probable cause, and would eliminate the need for judicial review. People in the United States have an expectation of privacy in the mail they send to friends, family, or business associates abroad. The Customs Service's interest in confiscating illegal weapons' shipments, drugs or other contraband is adequately protected by its ability to secure a search warrant when it has probable cause. Short of an emergency, postal officials can always hold a package while they wait for a court to issue a warrant. 

Even in situations involving dangerous weapons, postal officials are required to engage in the least intrusive means of a search. Under current regulations, when the Postal Service determines there is a credible threat that a package contains a bomb, illegal weapon, or some other item that would pose a danger to life or property, postal officials screen the package with an x-ray machine before opening it. 39 C.F.R. Section 233.11 (2001). If the screening provides reasonable suspicion that the package contains contraband, postal officials may only open the package to the extent necessary to determine and eliminate the danger. Id. In addition, if postal officials open a package, they are required to send a detailed statement to the Chief Postal Inspector detailing the circumstances that led to the opening of the package. 

Recently, the U.S. Postal Service wrote a letter to the Chairman of the Financial Services Committee on the issue of searching outbound mail without a warrant: "There is no evidence that eroding these long established privacy protections will bring any significant law enforcement improvements over what is achieved using existing, statutorily approved law enforcement techniques." (Letter to Chairman Oxley from the USPS, dated October 10, 2001.) 

We believe Section 144 should be deleted from the bill because it is unnecessary to provide Customs officials with new authority to search outgoing international mail. If the section remains in the bill, however, we would like to work with you on language that would ensure the public's expectation of privacy in outgoing international mail is not unnecessarily compromised. 

We urge you to delete these provisions from the bill. 

Sincerely, 

Laura Murphy, Director
Washington National Office 

Rachel King 
Legislative Counsel 

Katie Corrigan
Legislative Counsel 

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