Letter to the Senate Urging Opposition to the Conference Report on H.R. 3009 "The Andean Trade Preference Act," which Undermines Civil

RE: Oppose Conference Report on H.R. 3009 “”The Andean Trade Preference Act”” which Undermines Civil Rights

Dear Senator:

The ACLU urges Senators to oppose the Conference Report on H.R. 3009 the Andean Trade Preference Act (“”Trade Bill””). Sections 341 and 344 of the report weaken protections against racial profiling and other illegal searches and undermine the right to privacy in personal correspondence.

Unwarranted Immunity for Customs Officials

Congress is giving Customs a blank check to engage in illegal behavior. Section 341 provides immunity to a Customs officer conducting a search of a person or property provided he or she was acting in “”good faith.”” Even though this provision would dramatically change immunity law, neither the Senate, nor House Judiciary Committees ever considered the provision. It was tacked on to the Trade Bill as part of the Customs Reauthorization Act. Section 341 undermines years of sound constitutional precedent without consideration by the committees of jurisdiction.

Major civil rights organizations oppose this change. Among the organizations on record opposing the provision are: the Leadership Conference on Civil Rights, the National Association for the Advancement of Colored People, the National Council of La Raza, the Mexican American Legal Defense Fund, the Council on American Islamic Relations and the American Arab Anti-Discrimination Committee. The civil rights community believes that passage of this provision would be a major setback in the fight to end racial profiling.

This major change is completely unnecessary. Current law already provides qualified immunity to Customs agents. Qualified immunity is based on an assessment of what a reasonable officer should have done in any given situation. Under current law, if a law enforcement officer conducts and unconstitutional search based upon a reasonable but mistaken conclusion that reasonable suspicion exists, the officer is entitled to immunity from suit. See United States v. Lanier, 520 U.S. 259 (1997). This standard provides Customs agents protection against unreasonable law suits but also protects individuals from unconstitutional searches. The Customs Service has not offered a reasonable justification as to why the qualified immunity standard should be changed.

Section 341 would provide a Customs officer with “”good faith”” immunity. The term “”good faith” is not defined in the bill. Presumably an officer could engage in blatantly discriminatory conduct, but if he in “good faith” believed that he was justified in doing so, he could not be held liable. This bill would expand immunity so that a person would not be entitled to relief from an unconstitutional search unless the officer acted in “”bad faith”” — a nearly impossible standard to meet. No law enforcement official is entitled to this broad grant of immunity. Given that Congress has recently expanded the police powers of government officials, it should not at the same time cut back on the mechanisms in existing law that are designed to ensure police powers are not abused.

The Customs Service is a law enforcement agency in dire need of oversight. Out of all the federal law enforcement agencies, the Customs Service should not be provided with additional immunity. The Customs Service has a documented record on racial profiling. A March 2000 General Accounting Office report found that while African-American women were nearly 9 times more likely to be subjected to x-ray searches as white American women, they were less than half as likely to be found carrying contraband. After the GAO Report was released, then Commissioner Raymond Kelly implemented a series of changes to Customs’ search policy designed to address the problem. In June of 2001, the total number of Customs searches had decreased, but people of color, especially African-Americans, constituted the majority of the targets of the searches.[1]

Furthermore, Customs agents have the authority to conduct extraordinarily intrusive searches. Based only on a finding of reasonable suspicion, a customs agent can subject a traveler to a full body cavity search and an x-ray search. In the recent case of Brent v. Odesta Ashley, et al, 247 F.3d 1294 (11th Cir. Ct. App. 2001), customs agents in Florida subjected an African-American woman to a painful strip search and then an x-ray search even though there was virtually no evidence of drugs or other contraband.

Privacy of Outgoing International Mail

Section 344 of the conference report would allow Customs officials to open sealed, outbound international mail over 16 ounces without a warrant, without probable cause, and without any judicial review at all. 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.

Although the ACLU has appreciates that the Trade Bill conferees deferred to the Senate mail provision, section 344 fails to provide any checks and balances on Customs officials’ unilateral authority to open personal mail over 16 ounces. The bill does not require Customs officers to record or track their warrantless searches or provide for independent third party review of their decisions. People in the United States have an expectation of privacy in the mail they send to friends, family, or business associates abroad and there should be some accountability when Customs officers undermine their privacy.

We urge you to vote against this bill.

Sincerely,

Laura Murphy
Director, Washington National Office

Rachel King
Legislative Counsel

Katie Corrigan
Legislative Counsel

Endnotes

[1] The ACLU has an analysis of data on searches collected by the Customs Service, which we will provide upon request.