Senators ask DHS for more complete answers about CBP stops

Months after first requesting information about Customs and Border Protection’s (CBP's) monitoring, stops, and searches of general aviation aircraft on domestic flights, Sen. Pat Roberts (R-Kan.) and Jim Risch (R-Idaho) have received a response from the Department of Homeland Security (DHS), but questions remain about CBP’s actions.

The response from the department’s legislative affairs office came after Roberts objected to moving forward with a Finance Committee vote on the nomination of R. Gil Kerlikowske to head CBP. In addition to the letter and a table reporting additional details of some of the incidents, Roberts also received more complete answers from Kerlikowske to questions the senator had raised directly with the nominee as part of the confirmation proceedings.

Having received a response, Roberts has dropped his objection, clearing the way for the nomination to move forward. But he and Risch were not fully satisfied with the answers they got and sent a Feb. 12 letter requesting a briefing and additional written responses from DHS.

The information provided by DHS repeated a familiar refrain, citing FAA regulations and statutes as the authority for stopping GA aircraft without probable cause or reasonable suspicion of illegal activity. But AOPA argues that those regulations don’t give law enforcement agents the authority to make such stops.

“Those regulations require pilots to provide certain documentation to law enforcement officials who request it, but they don’t give officers the authority to stop pilots in the first place,” said Jim Coon, AOPA senior vice president of government affairs. “For that they need independent authority, such as probable cause or reasonable suspicion that illegal activity is taking place.”

Just what that probable cause or reasonable suspicion might be remains elusive. In a table supplied with the letter, the reason cited for most of the searches is listed as “pilot consent.” But that doesn’t explain what probable cause or reasonable suspicion of illegal activity allowed the officers to stop the airplane or ask to search it in the first place.

To add to the confusion, the list of incidents is incomplete and includes contradictory information. For example, of 95 CBP stops and searches reported by DHS for fiscal year 2011, the letter claims agents found 11 criminal or regulatory violations but the accompanying table actually lists only four. And while the letter to Roberts says CBP found a 12 percent violation rate in its stops, the table of data provided by DHS shows only a 4 percent violation rate. Similar discrepancies were found in the information provided for other years as well.

“The data provided is so incomplete that it’s impossible to draw any meaningful conclusions,” said Ken Mead, AOPA general counsel. “DHS’s responses do little to substantively answer the senators’ questions or ours.”

As a member of the Senate Finance Committee, Roberts had the opportunity to directly question Kerlikowske for the record. Roberts asked that Kerlikowske work with him to resolve this issue and requested a formal, written response to his previous inquiry. 

In expanded answers to Roberts’ questions, Kerlikowske conceded that stopping and searching GA aircraft on domestic flights might not be the best use of CBP resources and promised to investigate the agency’s GA enforcement actions if he is confirmed.

Roberts, Risch, and six other senators, all members of the Senate GA Caucus, first sent a letter dated Oct. 30, 2013, to DHS raising concerns that the stops violate pilots’ Fourth Amendment rights. They also demanded that DHS provide records of all CBP stops of general aviation flights since 2009, including explanations of the “reasonable suspicion” that led to each stop and the “probable cause” that resulted in a search. Those records, the letter insisted, should be made available no later than Nov. 15.

But when the deadline passed without response, Roberts and Risch went back to CBP's parent agency, the Department of Homeland Security, to insist that the agency provide the requested information. That letter to DHS Acting Secretary Rand Beers came with a Dec. 16 deadline, which also passed without a response.

AOPA sought the help of Congress on this issue after working for months to get to the bottom of more than 40 reports of stops and searches by CBP, Immigrations and Customs Enforcement, or local law enforcement acting at the CBP’s request. In each case, CBP, which is charged with border security, stopped flights that never left the United States. Pilots report that several of the stops involved drawn weapons and the use of dogs, but in no case did CBP find evidence of criminal activity.