U.S. GOVERNMENT PRINTING OFFICE

66–023 CC WASHINGTON : 2000

U.S. CUSTOMS SERVICE PASSENGER INSPECTION

OPERATIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT

OF THE

COMMITTEE ON WAYS AND MEANS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

MAY 20, 1999

Serial 106–45

Printed for the use of the Committee on Ways and Means

(

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

(II)

COMMITTEE ON WAYS AND MEANS

BILL ARCHER, Texas, Chairman

PHILIP M. CRANE, Illinois

BILL THOMAS, California

E. CLAY SHAW, JR., Florida

NANCY L. JOHNSON, Connecticut

AMO HOUGHTON, New York

WALLY HERGER, California

JIM MCCRERY, Louisiana

DAVE CAMP, Michigan

JIM RAMSTAD, Minnesota

JIM NUSSLE, Iowa

SAM JOHNSON, Texas

JENNIFER DUNN, Washington

MAC COLLINS, Georgia

ROB PORTMAN, Ohio

PHILIP S. ENGLISH, Pennsylvania

WES WATKINS, Oklahoma

J.D. HAYWORTH, Arizona

JERRY WELLER, Illinois

KENNY HULSHOF, Missouri

SCOTT MCINNIS, Colorado

RON LEWIS, Kentucky

MARK FOLEY, Florida

CHARLES B. RANGEL, New York

FORTNEY PETE STARK, California

ROBERT T. MATSUI, California

WILLIAM J. COYNE, Pennsylvania

SANDER M. LEVIN, Michigan

BENJAMIN L. CARDIN, Maryland

JIM MCDERMOTT, Washington

GERALD D. KLECZKA, Wisconsin

JOHN LEWIS, Georgia

RICHARD E. NEAL, Massachusetts

MICHAEL R. MCNULTY, New York

WILLIAM J. JEFFERSON, Louisiana

JOHN S. TANNER, Tennessee

XAVIER BECERRA, California

KAREN L. THURMAN, Florida

LLOYD DOGGETT, Texas

A.L. SINGLETON, Chief of Staff

JANICE MAYS, Minority Chief Counsel

SUBCOMMITTEE ON OVERSIGHT

AMO HOUGHTON, New York, Chairman

ROB PORTMAN, Ohio

JENNIFER DUNN, Washington

WES WATKINS, Oklahoma

JERRY WELLER, Illinois

KENNY HULSHOF, Missouri

J.D. HAYWORTH, Arizona

SCOTT MCINNIS, Colorado

WILLIAM J. COYNE, Pennsylvania

MICHAEL R. MCNULTY, New York

JIM MCDERMOTT, Washington

JOHN LEWIS, Georgia

RICHARD E. NEAL, Massachusetts

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records

of the Committee on Ways and Means are also published in electronic form. The printed

hearing record remains the official version. Because electronic submissions are used to

prepare both printed and electronic versions of the hearing record, the process of converting

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process

is further refined.

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C O N T E N T S

Page

Advisory of May 11, 1999, announcing the hearing ............................................. 2

WITNESSES

U.S. Customs Service, Hon. Raymond W. Kelly, Commissioner .......................... 16

Buritica, Amanda, Port Chester, NY ..................................................................... 33

Denson, Janneral, Palm Beach County, FL .......................................................... 37

Ed Fox & Associates, Edward M. Fox .................................................................... 41

Johnson, Sheri Lynn, Cornell University and Cornell Death Penalty Project ... 47

National Treasury Employees Union, Robert M. Tobias ...................................... 50

SUBMISSION FOR THE RECORD

Caplan, Andrew M., Alexandria, VA, statement ................................................... 65

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U.S. CUSTOMS SERVICE PASSENGER

INSPECTION OPERATIONS

THURSDAY, MAY 20, 1999

HOUSE OF REPRESENTATIVES,

COMMITTEE ON WAYS AND MEANS,

SUBCOMMITTEE ON OVERSIGHT,

Washington, DC.

The Subcommittee met, pursuant to notice, at 9:03 a.m., in room

1100, Longworth House Office Building, Hon. Amo Houghton

(Chairman of the Subcommittee) presiding.

[The advisory announcing the hearing follows:]

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ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON OVERSIGHT

FOR IMMEDIATE RELEASE CONTACT: (202) 225–7601

May 11, 1999

No. OV–6

Houghton Announces Hearing on the

U.S. Customs Service Passenger Inspection

Operations

Congressman Amo Houghton (R–NY), Chairman, Subcommittee on Oversight of

the Committee on Ways and Means, today announced that the Subcommittee will

hold a hearing on U.S. Customs Service passenger inspection operations. The hearing will take place on Thursday, May 20, 1999, in the main Committee hearing

room, 1100 Longworth House Office Building, beginning at 9:00 a.m.

In view of the limited time available to hear witnesses, oral testimony at this

hearing will be from invited witnesses only. Witnesses will include the Honorable

Raymond W. Kelly, Commissioner, U.S. Customs Service, individuals who have alleged discrimination in inspections, and experts who have studied Customs’ passenger search and seizure practices. However, any individual or organization not

scheduled for an oral appearance may submit a written statement for consideration

by the Committee and for inclusion in the printed record of the hearing.

BACKGROUND:

In 1998, Customs seized more than 1,880 pounds of heroin and 3,750 pounds of

cocaine as part of its Commercial Air Passenger operations, according to Customs

statistics. Customs officers may use strip searches, body cavity searches, and x-rays

to detect smuggling by individuals who hide contraband such as illegal drugs inside

their clothing or who may swallow packets of drugs. Of the 71.5 million international air passengers who passed through Customs last year, 50,892 were subjected to some level of body search, most of them simple pat-downs. Nationally, 43.3

percent of those subjected to body searches last year were Black or Hispanic.

Customs is now facing a number of lawsuits over body searches, including a classaction lawsuit by nearly 100 African American women alleging they were singled

out because of their sex and race. Commissioner Kelly has responded to the allegations by appointing an independent commission to review the passenger inspection

policies and procedures used by inspectors and requiring a report with recommendations by July 15, 1999.

In announcing the hearing, Chairman Houghton stated: ‘‘Serious allegations of racial profiling by Customs inspectors have been made by the public, and we absolutely have to get to the bottom of them. The views of the Customs Commissioner

and individuals with direct experiences will provide a good first step.’’

FOCUS OF THE HEARING:

The hearing will focus on a review of Customs passenger inspection operations,

and, in particular, on allegations of discriminatory racial profiling in passenger inspections and the agency’s response to those allegations. The Subcommittee’s hearing will provide a basis for evaluating a recently appointed independent review comVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00006 Fmt 6633 Sfmt 6621 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
3

mission’s work and a record for consideration of reforms to Customs passenger inspection operations.

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Any person or organization wishing to submit a written statement for the printed

record of the hearing should submit six (6) single-spaced copies of their statement,

along with an IBM compatible 3.5-inch diskette in WordPerfect 5.1 format, with

their name, address, and hearing date noted on a label, by the close of business, Thursday, June 3, 1999, to A.L. Singleton, Chief of Staff, Committee on Ways and

Means, U.S. House of Representatives, 1102 Longworth House Office Building,

Washington, D.C. 20515. If those filing written statements wish to have their statements distributed to the press and interested public at the hearing, they may deliver 200 additional copies for this purpose to the Subcommittee on Oversight office,

room 1136 Longworth House Office Building, by close of business the day before the

hearing.

FORMATTING REQUIREMENTS:

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or exhibit submitted for the printed record or any written comments in response to a request

for written comments must conform to the guidelines listed below. Any statement or exhibit not

in compliance with these guidelines will not be printed, but will be maintained in the Committee

files for review and use by the Committee.

1. All statements and any accompanying exhibits for printing must be submitted on an IBM

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rely on electronic submissions for printing the official hearing record.

2. Copies of whole documents submitted as exhibit material will not be accepted for printing.

Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material

not meeting these specifications will be maintained in the Committee files for review and use

by the Committee.

3. A witness appearing at a public hearing, or submitting a statement for the record of a public hearing, or submitting written comments in response to a published request for comments

by the Committee, must include on his statement or submission a list of all clients, persons,

or organizations on whose behalf the witness appears.

4. A supplemental sheet must accompany each statement listing the name, company, address,

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This supplemental sheet will not be included in the printed record.

The above restrictions and limitations apply only to material being submitted for printing.

Statements and exhibits or supplementary material submitted solely for distribution to the

Members, the press, and the public during the course of a public hearing may be submitted in

other forms.

Note: All Committee advisories and news releases are available on the World

Wide Web at ‘HTTP://WWW.HOUSE.GOV/WAYSlMEANS/’.

The Committee seeks to make its facilities accessible to persons with disabilities.

If you are in need of special accommodations, please call 202–225–1721 or 202–226–

3411 TTD/TTY in advance of the event (four business days notice is requested).

Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above.

Chairman H

Good morning everybody. Thank you for coming here today. Over

OUGHTON The hearing will come to order.

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the past few months, we have heard serious allegations that the

Customs Service has unfairly targeted Black and Hispanic air passengers for personal searches based on their race. This practice is

known as ‘‘racial profiling,’’ and the purpose of today’s hearing is

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to review those allegations and to help determine what steps must

be taken to protect the rights of passengers while at the same time

enforcing the laws of the lands.

Customs inspectors have an important and difficult job. I can attest to this personally having spent a good part of yesterday with

the Customs Service out at Dulles Airport. These men and women

are literally the frontline of defense in preventing the illegal importation of narcotics into the United States. For example, last year

alone, the Passenger Inspection operations processed 71.5 million

international air passengers. Inspectors conducted more than

50,000 personal searches, including more than 2,000 positive

searches. As a result, Customs seized more than 640 pounds of heroin and 470,000 pounds of cocaine from international air passengers.

All this being said, we cannot permit these inspectors to target

passengers solely because they are Black or Hispanic or of any

other ethnicity—not even in the fight to stamp out drugs. Personal

searches involve physical contact, and they can be invasive. The

Constitution grants rights to everyone to prevent such personal invasions. Unless there is reasonable suspicion that a person may be

committing a crime, race, alone, cannot justify such a suspicion.

The Constitution does not allow it, and we must work to prevent

it.

I know that Commissioner Kelly has taken allegations of racial

bias by the Customs Service seriously. He has investigated allegations of racial bias, made personnel changes when necessary, and

ensured that strong measures are being taken to prevent future

problems. The Commissioner has convened an independent commission to review these important matters, and I look forward to

receiving the commission report, which I understand will be available in July.

Before introducing the Ranking Democrat, my friend, Mr. Coyne,

I would like to thank Mr. John Lewis. Mr. John Lewis is one of

my heroes, an extraordinary member of this body, and is the person who really instigated this whole hearing. So, I thank you very

much, Mr. Lewis, for doing this, and I would like to yield to our

Ranking Democrat, Mr. Coyne, for his remarks.

[The opening statement follows:]

Opening Statement of Chairman Amo Houghton, a Representative in

Congress from the State of New York

Good morning. Over the past few months we have heard serious allegations that

the Customs Service has unfairly targeted Black and Hispanic air passengers for

personal searches based on their race. This practice is known as ‘‘racial profiling.’’

The purpose of today’s hearing is to review those allegations and to help determine

what steps must be taken to protect the rights of passengers while at the same time

enforcing our laws.

I understand that Customs inspectors have an important and most difficult job.

They are literally the front line of defense in preventing the illegal importation of

narcotics into the United States. Last year alone, the Passenger Inspection operations processed 71.5 million international air passengers. Inspectors conducted

more than 50,000 personal searches, including more than 2,000 positive searches.

As a result, Customs seized more than 640 pounds of heroin and 470 pounds of cocaine from international air passengers.

All this being said, we cannot permit these inspectors to target passengers solely

because they are Black or Hispanic or of any other ethnicity—not even in the fight

to stamp out drugs. Personal searches involve physical contact, and they can be

invasive. The Constitution grants rights to people to prevent such personal invaVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
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sions, unless there is reasonable suspicion that a person may be committing a crime.

Race, alone, cannot justify such a suspicion. The Constitution does not allow it, and

we must work to prevent it.

I know that Commissioner Kelly has taken allegations of racial bias by the Customs Service seriously. He has investigated allegations of racial bias, made personnel changes when necessary, and ensured that adequate measures are being

taken to prevent future problems.

The Commissioner has convened an independent commission to review this important matter. I look forward to receiving the commission’s report in July.

I am pleased to yield to our ranking Democrat, Mr. Coyne.

Mr. C

During the 106th Congress, this Subcommittee plans to conduct

OYNE. Thank you, Mr. Chairman.

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a series of hearings on the U.S. Customs Service. It has been nearly 6 years since a comprehensive review of the Customs Service has

been undertaken with several new Customs Commissioners having

come and gone during that 6-year period.

The Subcommittee’s first Customs oversight hearing this year

will review allegations of racial profiling by U.S. Customs Service

inspectors. I want to commend my colleague John Lewis for bringing this important issue to the Subcommittee’s attention and for

his life-long commitment to public service and racial equality.

I also want to thank Chairman Houghton and Customs Service

Commissioner Kelly for recognizing the importance of this issue for

all Americans and for the integrity of the Customs Service.

A significant number of U.S. citizens strongly believe that at

some U.S. airports one or more Customs agents are selecting passengers for intrusive physical searches based on their race. Such

profiling is unacceptable. The U.S. Customs Service must operate

with the highest integrity and deal swiftly, honestly, and fairly

with serious allegations of illegal practices.

It is my understanding that Commissioner Kelly created the

independent Personal Search Review Commission in April 1999 to

address such concerns. I am impressed not only with the scope of

the Commission’s review but also the fact that a report with recommendations will be made, as the Chairman said, in July 1999.

Today’s hearing will provide the Subcommittee with an excellent

framework for considering the Commission’s findings and recommendations for reform. It is my hope that in the next few weeks

we can reach a consensus on both the scope of the problem and

what must be done to address it.

Thank you.

[The opening statement follows:]

Opening Statement of Hon. William J. Coyne, a Representative in Congress

from the State of Pennsylvania

During the 106th Congress, the Ways and Means Subcommittee on Oversight

plans to conduct a series of hearings on the U.S. Customs Service. It has been nearly six years since a comprehensive review of Customs has been undertaken, with

several new Customs Commissioners having come and gone during that period of

time.

At the request of Congressman John Lewis, the Subcommittee’s first Customs

oversight hearing this year will review allegations of racial profiling by Customs inspectors. I want to commend my colleague for bringing this important issue to the

Subcommittee’s attention, and for his life-long commitment to public service and racial equality.

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I also want to thank Chairman Houghton and Customs Commissioner Kelly for

recognizing the importance of this issue for all Americans and for the integrity of

the Customs Service.

The issue of racial profiling is not new. Unfortunately, it is a continuing concern

at all levels of law enforcement—whether they are local police departments, state

inspection services, or federal agencies such as the U.S. Customs Service.

The issue of racial profiling is a difficult one. Rarely are the facts surrounding

a given example as clear-cut as one might hope. As is typical with any illegal activity, the practice is not easily identifiable, nor is it usually documented or acknowledged by those who practice it. Rather, such abuses are hard to pinpoint, harder

to punish, and even harder to prevent.

What is clear to all of us, however, is that a significant number of U.S. citizens

strongly believe that at some U.S. airports, one or more Customs agents are selecting passengers for intrusive physical searches based on their race. What is also

clear is that such profiling is unacceptable. And finally, it is clear that Customs

must operate with the highest integrity and deal swiftly, honestly, and fairly with

such serious allegations of illegal practices.

It is my understanding that Customs Commissioner Kelly created the independent ‘‘Personal Search Review Commission’’ in April 1999 to address such concerns. I am impressed not only with the scope of the Commission’s review, but also

with the fact that a report with recommendations will be made by July 15, 1999.

Today’s hearing will provide the Subcommittee with an excellent framework for

considering the Commission’s findings and recommendations for reform. It is my

hope that in the next few weeks we can reach a consensus on both the scope of the

problem and what must be done to address it.

Chairman H

Mr. Lewis, have you got an opening statement?

OUGHTON. Thanks, Mr. Coyne.

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Mr. LEWIS. Yes, Mr. Chairman.

Thank you, Mr. Chairman and Mr. Coyne for holding this hearing. I am particularly grateful to my good friend from New York,

Mr. Houghton, for recognizing the importance of our Subcommittee

looking into this matter. Allegations of racial profiling by Customs

Service raise very serious concerns regarding the treatment of

international travelers, especially people of color.

I first became interested in this issue when I saw an investigative report by Atlanta’s WAGA Channel 5 that documented apparently discriminatory practices by Customs inspectors at Hartsfield

International Airport. Shortly after WAGA aired this program, I

was contacted by Customs inspectors at the airport who expressed

their belief that Customs were engaged in a systematic, discriminatory treatment of passengers. Since that time, my office has been

contacted by people throughout the country who have told of perceived mistreatment and allegations of racial discrimination.

As I have studied this problem, one of my greatest concerns has

been the almost complete discretion that Customs inspectors have

when deciding which traveler to stop and search. It appears the

Customs criteria for stopping passengers is so broad that an inspector can justify stopping just about anybody. I fear that when

given this discretion, an inspector’s racial biases, either conscious

or subconscious, influence who is stopped and searched.

Dr. Alan Zaslavsky, an associate professor at Harvard University, has analyzed data from Customs searches. His work provides

some justification for my concern. His research concludes that

Blacks and Hispanics are much more likely to be searched and intensively searched than are whites. By intensive search, I mean

strip searches, x-rays, and body cavity searches. For example, a

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Black woman traveler is 20 times more likely to be stopped and intensively searched than is a white woman. With the consent of the

Chair, I ask that this analysis be submitted for the record.

In addition to the allegations of discrimination, I am deeply troubled by the authority Customs inspectors have over U.S. citizens.

U.S. citizens can be held for days without being allowed to contact

a lawyer or make a telephone call. Customs can detain any traveler

without a magistrate or any other judicial official’s permission to

detain travelers. Customs inspectors can effectively force travelers

to submit to x-rays and drink powerful laxatives. That the Government has such authority over its citizens is very troubling. That

such authority may be exercised in a racially discriminatory manner is chilling and frightening.

There is no place in our Nation for discrimination. That is why

I called for this hearing. For the past 2 months, people of color in

Atlanta, people of color from across the country have come up to

me and shared their stories with me. From what I have seen, from

what I have heard, we have a problem, and we must do something

about it.

I am pleased that Commissioner Kelly has responded promptly

and responsibly to these allegations. In particular, I want to thank

Commissioner Kelly for establishing an independent Personal

Search Review Commission to examine allegations of passenger

profiling by Customs inspectors. However, I believe that some congressional actions may be necessary to protect travelers’ rights and

reduce the likelihood that innocent people will be held incommunicado for days on end by their own government.

I am hopeful that this hearing will shed light on Customs’ policies and practices, what the agency is doing to address passenger

complaints, and whether Congress needs to become involved in this

deeply troubling and very important matter.

Mr. Houghton, my friend, thank you for holding this hearing and

for the opportunity to make an opening statement.

[The opening statement follows:]

Opening Statement of Hon. John Lewis, a Representative in Congress from

the State of Georgia

Thank you Mr. Chairman, and Mr. Coyne, for holding this hearing. I am particularly grateful to my good friend from New York, Mr. Houghton, for recognizing the

importance of our subcommittee looking into this matter. Allegations of racial

profiling by Customs inspectors raise very serious concerns regarding the treatment

of international travelers, especially people of color.

I first became interested in this issue when I saw an investigative report by Atlanta’s WAGA Channel 5, which documented apparently discriminatory practices by

Customs inspectors at Hartsfield International Airport. Shortly after WAGA aired

its programs, I was contacted by Customs inspectors at the airport who expressed

their belief that Customs was engaged in a systematic, discriminatory treatment of

passengers. Since that time, my office has been contacted by people throughout the

country who have told of perceived mistreatment and allegations of racial discrimination.

As I have studied this problem, one of my greatest concerns has been the almost

complete discretion that Customs inspectors have when deciding which travelers to

stop and search. It appears that Customs criteria for stopping passengers is so

broad that an inspector can justify stopping just about anybody. I fear that, when

given this discretion, an inspector’s racial biases, either conscious or subconscious,

influence who is stopped and searched.

Dr. Alan Zaslavsky, an Associate Professor of Harvard University, has analyzed

data from Customs searches. His work provides some justification for my concerns.

His research concludes that Blacks and Hispanics are much more likely to be

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searched—and to be subjected to intensive searches—than are Whites. By intensive

search, I mean strip searches, x-rays and body-cavity searches. For example, a black

woman traveler is twenty times more likely to be stopped and intensively searched

than is a white woman. With the consent of the chair, I ask that this analysis be

submitted for the record.

In addition to the allegations of discrimination, I am deeply troubled by the authority Customs inspectors have over U.S. citizens. U.S. citizens can be held for

days without being allowed to contact a lawyer or make a phone call. Customs can

detain any traveler without a Magistrate’s or any other judicial official’s permission

to detain travelers. Customs inspectors can effectively force travelers to submit to

x-rays and drink powerful laxatives. That the government has such authority over

its citizens is very troubling. That such authority may be exercised in a racially and

discriminatory manner is chilling and frightening.

There is no place in our nation for discrimination. That is why I called for this

hearing. For the past two months, people of color in Atlanta, people of color from

across the country have come up to me and shared their stories with me. They have

thanked me. From what I have seen, from what I have heard, we have a problem—

and we must do something about it.

I am pleased that Commissioner Kelly has responded promptly and responsibly

to these allegations. In particular, I want to thank Commissioner Kelly for establishing an independent Personal Search Review Commission to examine allegations

of passenger profiling by Customs inspectors. However, I believe that some Congressional action may be necessary to protect travelers rights and reduce the likelihood

that innocent people will be held incommunicado for days on end—by their own government. I am hopeful that this hearing will shed light on Customs’ policies and

practices, what the agency is doing to address passenger complaints, and whether

Congress needs to become involved in this deeply troubling and very important matter.

Thank you, Mr. Chairman, for holding this hearing, and for the opportunity to

make an opening statement.

Congressman John Lewis Calls on Congress to Address Charges of Racial

Bias by U.S. Customs—Press Release

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LEWIS TO INTRODUCE BILL TO PROTECT THE RIGHTS OF INTERNATIONAL TRAVELERS

WASHINGTON—Congressman John Lewis (D–GA), a Member of the Oversight Subcommittee of the House Committee on Ways and Means, announced that he will introduce legislation to address alleged abuses of civil rights by U.S. Customs Service

inspectors. Congressman Lewis will discuss details of his proposed legislation at a

press conference following an Oversight Subcommittee Hearing on allegations of racial bias in Custom Service procedures for stopping and searching travelers.

‘‘It appears that the criteria for stopping and searching passengers by Customs

Inspectors is so broad that an inspector can justify stopping just about anybody. I

fear that, when given this discretion, an inspector’s racial biases, whether conscious

or subconscious, influence who is stopped and searched,’’ said Congressman Lewis.

According to testimony heard today by the Subcommittee, 43.3% of the 50,892 international passengers traveling in 1998 subjected to body searches were Black or Hispanic. Harvard Statistician Alan Zaslavsky determined that, based on customs personal search statistics, the chances that a black woman traveler would be intensively searched are about 20 times that for a white female traveler.

At the hearing, Janneral Denson, an African American woman, and Amanda

Buritica, an Hispanic American woman, both testified about how they were subjected to extensive personal searches including X-rays, partial strip searches and

body cavity searches. Ms. Buritica testified that after enduring a strip search at the

San Francisco Airport, she was handcuffed and taken to the hospital. There, she

was forced to take laxatives and held for more than 24-hours without being allowed

to call relatives, an attorney, or anyone else.

Ms. Denson told the Subcommittee that she was stopped and searched while returning from abroad to her hometown of Ft. Lauderdale, Florida. At the time, Ms.

Denson was seven months pregnant. According to Ms. Denson, she was handcuffed,

taken to a hospital in Miami, and told she would not be released until she drank

laxatives and had the results examined. She said that she was given little to eat

and drink, made to clean her own bedpan, and physically restrained throughout the

night. Less than two weeks later, doctors performed an emergency cesarean section

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and Ms. Denson’s son, Jordan, was born prematurely weighing just three pounds,

four ounces.

Congressman Lewis said such credible accounts of injustice emphasize the need

to ensure that such abuses cannot happen in the future. Congressman Lewis said,

‘‘There is no place in our nation for discrimination. That is why I called for this

hearing.’’ While applauding action taken by Customs Commissioner Raymond W.

Kelly in appointing a Personal Search Review Commission, Congressman Lewis said

that action by the Congress is necessary to ensure that the civil rights of international travelers are respected.

‘‘Customs does not need a magistrate’s or any judicial officer’s permission to detain travelers. Customs does not permit detainees to have legal counsel and can effectively force travelers to submit to X-rays and drink potent laxatives. That the

government has such authority over its own citizens is very troubling. That such

authority may be exercised in a racially discriminatory manner is chilling,’’ said

Congressman Lewis.

Congressman Lewis will discuss the introduction of proposed legislation to ensure

that all international travelers are treated fairly when searched or detained at a

Customs processing center. To be introduced in this Congress, the ‘‘Civil Rights for

International Travelers’’ will:

• Provide travelers access to an attorney within 24 hours of their detention by

U.S. Customs.

• Require U.S. Customs to obtain approval of a judicial magistrate before it can

detain a traveler beyond 12 hours.

• Require U.S. Customs to inform travelers of their rights and the process and

procedures U.S. Customs will adhere to when stopping and searching passengers.

• Require U.S. Customs to compile annual data on the ethnicity and sex of passengers stopped and searched by inspectors, the type of search conducted, and the

result of the search.

• Require periodic training and retraining of U.S. Customs inspectors, especially in the area of racial sensitivity.

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Chairman HOUGHTON. Thanks, Mr. Lewis.

Mr. Hayworth, have you got an opening statement?

Mr. HAYWORTH. Mr. Chairman, I would just like to thank you for

holding this hearing.

Undergirding our constitutional rights that our Founders had the

incredible foresight and wisdom to provide for us in Philadelphia

over two centuries ago, there is a basic notion of law and a question that emerges, and that is, what is reasonable? And I hope during the course of today’s hearings to hear from Commissioner Kelly

and to gain insight, and, as my colleague from Georgia said, if

there are abuses, to act upon those abuses.

It is in that spirit that we conduct these hearings; not as Republicans or as Democrats, but as Americans determined to exercise

our constitutional role of oversight, and, again, I thank the Commissioner, and I thank my colleagues and especially you, Mr.

Chairman, for holding this hearing.

Chairman HOUGHTON. Thanks very much, Mr. Hayworth.

Now, I would like to call on Commissioner Kelly for his testimony.

STATEMENT OF RAYMOND W. KELLY, COMMISSIONER, U.S.

CUSTOMS SERVICE

Mr. KELLY. Thank you. Mr. Chairman, Members of the Committee, thank you for giving me this opportunity to testify.

The Customs Service has the responsibility for intercepting contraband entering the United States; contraband that includes everything from child pornography, to nuclear materials, to illegal

narcotics. Narcotics smuggling dominates all of this; it is where the

money is. Most of us are all too familiar with the price extracted

by the drug cartels to feed the country’s appetite for drugs. The

price is drug addiction, financial ruin, destroyed families, neighborhood deterioration, and debt. Drugs kill and maim their users and

put everyone nearby at risk—innocent citizens, unborn children,

and law enforcement officers who come up against the cartels.

As the leading drug interdiction agency, Customs has been granted unique search authorities to combat this threat. It is an important and indispensable tool in our efforts to stop a ruthless foe provided it is used fairly and judiciously. As committed as we are to

the fight, I do not want to add civil liberties to the list of victims.

We will not allow individual rights to become casualties in the war

on drugs.

The complaints we have received about racial prejudice in selecting passengers for searches are very disturbing. It is certainly not

the Customs Service’s policy, and it will not be tolerated as a Customs Service practice anywhere.

When these complaints surfaced, I appointed, Mr. Chairman, an

independent commission from outside the Customs Service to review our personal search practices. We are looking for an objectivehanded assessment. The commission members are in the midst of

their work now. I don’t want to prejudice with my comments here

what they may ultimately find. Nonetheless, the seriousness of the

17

charges were such that we have taken additional, immediate actions to improve and oversee the personal search process.

Where, in the recent past, any individual inspector could decide

whether or not to make a personal search, a supervisor must now

approve that decision. Now, only a port director, the highest ranking field manager on site, can make the decision to conduct an

x-ray of a passenger.

In addition, we have made legal counsel available to inspectors

at five of our Nation’s busiest airports—Newark, JFK in New York,

Boston, Atlanta, and Dulles in Washington. A Customs lawyer is

now on call 24 hours a day to assist our inspectors at these locations in determining whether or not they have sufficient grounds

to move from one stage of a personal search to the next. We will

soon expand this program to the entire country.

We have instituted better recordkeeping procedures. Before, data

collection on personal searches was weak and inconsistent. To remedy this, we have formed a national Passenger Data Analysis unit

at headquarters that will maintain information on all personal

searches. Field personnel are now required to file an inspecting officer information log that records all aspects, including race, of any

search they conduct. This information will be transmitted to the

new analysis unit, and will be used to monitor trends in our personal searches.

We have also formed an internal task force to review the criteria

used by our field personnel to select travelers for personal searches.

We want to be sure that the criteria used to determine if a personal search is warranted are not arbitrary and certainly not based

on race. Our task force will also make sure that our criteria are

recent and up to date. For example, in the past, Customs might

have considered the purchase of an airline ticket just a few days

in advance of a trip as suspect criteria. With the explosion of lastminute discount travel and the use of the Internet to purchase

such tickets today, this indicator may no longer be valid.

We have also undertaken a series of comprehensive reforms in

our inspection areas to improve the passenger environment. These

changes focus on three areas: information, training, and technology. In the past, our communications with the traveling public

was unclear and unfocused. Providing a coherent statement about

Customs’ mission was a very important first step; informing travelers about our practices and policies was another. We are achieving this by installing improved signage in our inspection areas, providing new comment cards for passengers, revising our declaration

forms to cut down on confusion, and making new brochures available that explain why Customs performs inspections and searches.

These include a document entitled, ‘‘Why Did This Happen to Me?’’,

that explains the personal search for those who are referred for a

secondary inspection.

A new Customer Service unit has been established at headquarters to underpin out inspection area reforms. They will be responsible for handling and tracking all passenger complaints.

Training is a crucial area of reform. The personal search, even in

the most impartial of circumstances, is a traumatic process. It is

only compounded if accompanied by a callous disregard on the part

18

of our personnel for the emotional well-being of passengers who are

searched. Clearly, this has occurred in several cases.

We are addressing this problem with a battery of training for all

our inspection personnel. Regular instruction in interpersonal communications, cultural interactions, passenger enforcement selectivity, and confrontation management is already being delivered.

This training will continue throughout our inspectors’ careers.

To compliment the training our employees receive, we are revising the Customs Personal Search Handbook. Instructions will be

clearer, tighter, and will require strict supervisory controls over the

entire process.

Technology may also make the personal search less intrusive. We

are deploying advanced technology wherever possible to minimize

physical contact during the personal search. In certain airports,

such as JFK in New York and Miami International, travelers selected for a personal search can elect to go through a body scan,

an advanced form of x-ray. These devices, as well as regular x-ray

equipment, will be deployed soon at other major airports around

the country. We need more of this equipment, and we have asked

for $9 million in the fiscal year 2000 budget to obtain it.

We need to be more sensitive to concerns about our personal

searches—that is clear—yet we don’t want this issue to be exploited by the drug cartels. We know from experience that the cartels will try to take advantage of a situation so they can smuggle

more drugs into our community and that they will use anyone to

do it. It is an extremely difficult problem for us.

Last year, we seized 21⁄2 tons of illegal narcotics from air passengers; half a ton of this was concealed on or in passengers’ bodies. Smugglers are men and women of all ethnic groups—young

and old, rich and poor. Disabled people are even used in the hopes

that Customs will be unsuspecting. Worse, the science of internal

smuggling is advancing. The cartels have devised ways to make

mules—as they call these body carriers—look less suspicious. Medications or laxatives often mask physical symptoms they would otherwise display.

Let me give you a sense of what we are up against. These pellets

are made from the fingers of rubber gloves. They weight, each,

about 18 grams. A smuggler would typically swallow about 60 of

these or even more; that is roughly one kilogram or 2.2 pounds.

Each of these pellets would be filled with heroin and worth about

$1,800 on the streets of New York. A whole kilogram would be

worth about a quarter of a million dollars, perhaps more.

While this is an example of what pellets of heroin look like, Mr.

Chairman, this in my hands is the real thing. These pellets of heroin that are in evidence bags were seized this past weekend from

a swallower who arrived at Dulles Airport from Ethiopia. It totals

558 grams. Inspectors became suspicious of the passenger after he

exhibited extreme nervousness and was unable to produce tickets

for the destinations he said he was traveling to in the United

States. A pat down search of the passenger and a search of his baggage proved negative. The Customs inspector subsequently obtained permission from his supervisor to obtain an x-ray. The passenger willingly signed a consent form. After tests at the hospital

and x-rays showed him positive for carrying drugs, he passed 25

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pellets, what you see here before you. This is a total of 40 pellets

that he was carrying in his body.

As lucrative as the payoff may be for the carriers, they are putting their own lives at great risk. Deaths from leakage of the pellets during transport is commmon. In 1998, alone, six carriers died

in a 6-month period. Victims over recent years have included a

pregnant mother who died after ingesting 157 pellets of cocaine.

Her unborn child did not die but instead suffered severe brain

damage. We get particularly upset when carriers are people like

this as well as children. Just 21⁄2 weeks ago, we stopped a 17-year

old boy who was an internal carrier. Doctors were considering

emergency surgery to prevent the drugs he was carrying from killing him. Fortunately, the boy survived after passing 30 pellets of

cocaine.

Again, I want to repeat, it would be a grave mistake for the cartels to interpret our concern for the rights of the traveling public

as a weakening of resolve. The Customs Service must get better at

pulling the drug smugglers out of line and allowing the law-abiding

traveler to proceed unobstructed. In no instance will we allow racial bias to be tolerated as a substitute for good law enforcement.

It is my duty as Commissioner of Customs to ensure that the law

enforcement policies and practices of our agency are carried out

with fairness, civility, and impartiality. I expect no less. People

who enter our country, all people, should expect no less.

We have initiated many changes at Customs to guarantee that

the rights and dignities of travelers are protected in the process of

what is one of our greatest challenges—stopping the inflow of

drugs. And I certainly welcome any additional recommendations

this Committee may have.

Thank you, Mr. Chairman.

[The prepared statement follows:]

Statement of Raymond W. Kelly, Commissioner, U.S. Customs Service

Mr. Chairman and Members of the Subcommittee, I want to thank you for the

opportunity to present Customs plans to address the very disturbing allegations of

racial bias that have been made by members of the traveling public about our personal search selection process.

I want to assure the Committee that this issue is a top priority for the Customs

Service. Real or perceived, bias is not and will not be tolerated in any part of Customs operations.

The drug cartels employ any and all means to thwart our interdiction activities,

including smuggling drugs on and in the bodies of travelers arriving in our ports

of entry. During Fiscal Year 1998, Customs inspectors discovered over 1,100 pounds

of heroin and cocaine smuggled by this means. Finding these drugs is not an easy

task.

Over 71 million commercial air passengers arrive in the U.S. each year. Customs

personnel must somehow sift the drug carriers among this vast number from the

majority of law-abiding travelers. Smugglers, however, fit no single profile. They

come in all shapes and sizes, social backgrounds, and ethnic groups. Drug cartels

will not hesitate to exploit anyone they can, especially those who would seem the

least suspicious.

We must strive to improve our personal search procedures to ensure that the

rights of travelers are protected at all times, and that this very special authority

is used effectively, judiciously, and with minimal intrusiveness.

Customs airport personnel work hard to carry out their jobs as best as they possibly can in a difficult environment. The personal search is one of their greatest

challenges. In theory, it is a procedure that they undertake as a last resort and with

the maximum of supervision. In practice, it is admittedly a procedure that we have

found in recent years to have suffered from poor oversight, insufficient training, and

20

a lack of supervision. This may in large part contribute to the allegations of bias

that surround Customs use of the personal search.

In addition, our treatment of passengers undergoing the personal search has, in

some instances, been sorely deficient. Communication with travelers detained for a

search was poor, information was lacking, and legitimate questions went unanswered. We need to do a much better job of utilizing the interpersonal skills required for this difficult and delicate task.

In response to these shortcomings, we’ve undertaken a variety of important measures. These include the formation of internal and external committees to review our

search procedures; immediate reforms to certain steps in the personal search such

as strengthening the role of supervisors; and far-reaching changes to our passenger

processing environment that focus on improved information, training, and technology.

Prior to coming to Customs, as Undersecretary for Enforcement at the U.S. Treasury, I directed the Office of Professional Responsibility (OPR) to review Customs

passenger selection practices and related training. OPR’s draft final report is undergoing review by the Treasury Department at this time.

In addition, the General Accounting Office (GAO) has been reviewing Customs air

passenger processing. We have been cooperating with the GAO by providing extensive access to records and field sites. The final report of the GAO is scheduled for

completion in May 2000.

Lastly, Customs has formed two committees, one internal and one external, to review the procedures used in the personal search. Our internal task force, The Passenger Processing Selection Committee, is composed of senior field management

from a cross section of the country as well as a representative from headquarters.

The task force will look at the criteria we use to identify passengers for further inspection. It will analyze the search data to determine if we are correctly selecting

the highest risk passengers. The review is focusing on Customs air passenger selection operations nationwide. Its work is well underway and will be delivered to my

office shortly.

In response to recent allegations, we appointed an independent Commission from

outside the Customs Service to review our personal search practices. The Commission is composed of prominent government leaders and is led by Constance Newman, Undersecretary of the Smithsonian Institution. In addition, we appointed an

Independent Advisor, Sanford Cloud, President and Chief Executive Officer of the

National Conference for Community and Justice.

The Customs Personal Search Commission will have unfettered access to Customs

facility and personnel. Its work is already underway, and it will report in mid-July.

To address problems in the supervision of personal searches we are instituting a

port-level self-inspection and certification process. Port directors will be required to

certify, in writing, that they are in charge of the personal search process and that

it is being carried out correctly at each port. The certification will be fielded in June.

We are revising our Personal Search Handbook to require additional levels of approval and oversight from supervisors and managers for any searches. It will include a clear statement of Customs personal search policy in language that is not

open to misinterpretation. The revised handbook will be approved this month and

be issued to all Customs officers, together with an eight-hour training course covering the new policy.

While management oversight is a key to resolving these problems, we also set out

to review our entire passenger-processing environment. The review paid particular

attention to the procedures that occur when passengers are selected for a secondary

inspection. We contracted with Booz-Allen & Hamilton, Inc., to conduct a study

called Interpersonal Communications: U.S. Customs Service and Air Travelers. The

final report was issued in February. It included many good recommendations for improvement, recommendations we have already acted upon. Our changes are grouped

into three categories: Information, Technology, and Training.

INFORMATION

New signs are being installed at major airports that will better inform passengers

about Customs mission and how we conduct enforcement operations. The improved

signage is part of a ‘‘new look’’ that air passengers will see in the coming months

in our airport facilities.

We are reaching out to the traveling public, inviting passenger feedback through

postage paid comment cards that will be prominently displayed at inspection area

exits. We’ve already received many useful comments from passengers in the cards

that have been sent in to date.

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Any complaints that are received are being processed by a new Headquarters Customer Satisfaction Unit (CSU). All correspondence, including the Comment Cards,

is now handled by the CSU. This centralization at Headquarters ensures that complaints are correctly addressed and that passengers receive appropriate feedback, including a personal phone call to address their concerns. The CSU is responsible for

keeping senior Customs managers informed on the concerns of the traveling public

and to identify any emerging trends regarding how we are delivering service.

To address passenger concerns in person, we are revitalizing the Passenger Service Representative (PSR) program. We are redefining the roles of these individuals,

who are designated liaisons to the travelling public, to ensure that they spend more

time on the floor and are more visible to passengers.

We are also taking steps to improve our passenger enforcement data collection

and analysis. We are making sure we have accurate and informed data on all the

personal searches our filed personnel conduct. This was not done well enough in the

past. Immediate improvements have been initiated through policy changes (such as

requiring inspectors to fill out a comprehensive entry on any searches they conduct),

computer system updates, and the formation of a Headquarters unit dedicated to

passenger search analysis.

We’re revising the Customs Declaration Form to incorporate new information on

the enforcement process, and to ensure it is in a better format and easier to understand for all travelers. The new form will be completed and available later this summer.

New brochures are being produced to better inform the public and to address frequently asked questions from passengers who have undergone an examination. The

brochure is entitled ‘‘Why Did This Happen to Me?’’ More informational brochures

are forthcoming, and informational advertisements are planned for in-flight magazines. Passenger surveys have demonstrated that this type of on-board information

is often the best way to convey Customs policies to arriving travelers.

TECHNOLOGY

We are striving to make the environment in which we conduct personal searches

less imposing and obtrusive. The use of privacy screening in baggage examination

areas is one option being considered. In addition, we are changing the appearance

of our search rooms to make them less clinical. Anything that we can do to alleviate

the stress of travelers helps both those we process as well as Customs inspectors

themselves.

To make the personal search less intrusive, we’re deploying as much advanced

technology as possible. Body scan imaging technology is currently in use at JFK airport in New York City and Miami International airport. This technology minimizes

the need for physical contact in a personal search. These devices, which are only

used at the consent of the selected traveler, permit inspectors to see if contraband

is concealed under clothing. We plan to install more of this technology in other

major airports across the country in the coming months.

Customs is also developing a latex breathalyser to detect if a passenger has swallowed drugs wrapped in rubber pellets. Such a test could help eliminate uncertainties about whether or not a passenger needed to be transported to a medical facility

for an x-ray. In addition, our Customs FY 2000 budget includes a request for funding for mobile digital x-ray equipment. This technology would greatly reduce the

time spent transporting passengers to off-airport medical facilities for an x-ray. It

would also eliminate the need to use restraint devices, such as handcuffs, to safely

transport passengers to outside medical facilities.

TRAINING

Better training for our personnel will help minimize the poor treatment some

travelers have complained about. Customs inspectors are receiving extensive training on interpersonal communications, cultural interaction, confrontation management, personal search policy, and passenger enforcement selectivity. An initial set

of training courses totaling forty hours will become part of an annual requirement

that will also be given to all new inspectors at the Customs Academy.

Customs takes the issue of personal searches and the recent controversy that has

surrounded this authority very seriously. We will continue to do whatever we can

to improve this process, and to work with the Congress to ensure that the dignity

and rights of all individuals are protected as we carry out our mission.

f

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Chairman HOUGHTON. Thanks very much, Commissioner.

I am just going to ask one question, and then I am going to pass

the questioning around to other members of the panel.

Can you break down a little bit this Personal Search Review

Commission? Who is on it, and what do you expect to get out of

it?

Mr. KELLY. The Commission is chaired by Ms. Constance Newman, certainly well known and very well respected in the Washington community. She is currently the Under Secretary for the

Smithsonian Institute, former Director of the Office of Personnel

Management. Also on that Committee is Ms. Robin Sanders who is

an employee of the National Security Council. Ms. Sanders, traveling into the country with Congresswoman McKinney from Georgia, was stopped and claimed abusive treatment and has also stated that she has been stopped virtually every time she comes into

the country. Ms. Anna Marie Salazar, who is the Deputy Assistant

Secretary of the Department of Defense, is of Hispanic origin. Hubert Bell is a former Secret Service agent. He is the Inspector General of the Nuclear and Regulatory Commission. The outside government member is Mr. Sanford Cloud, recommended by Ms. Newman, who is the director of the National Council for Justice.

What we expect to get from the Commission is certainly a totally

unfettered, objected examination of our processes. We would like to

have their sense, their indications as to whether or not racism or

racial bias is involved in the decisions made to select people for

personal search, and we certainly are looking for their recommendations as to how we can improve the process in any way.

Chairman HOUGHTON. All right, thank you.

Now, Mr. Coyne.

Mr. COYNE. Thank you, Mr. Chairman.

Commissioner, you had mentioned that you had put in a request, or you are about to receive $9 million for x-ray equipment. How far

is that going to go toward accomplishing what you want to do? In

other words, how much of your need is going to be met by spending

$9 million?

Mr. KELLY. It will address some of the concerns we have at major

airports. It won’t cover our 20 major airports, but it will cover the

ones that have 75 percent of the volume.

What we are looking to do with technology is two things: first,

we are looking to expand our body scanning equipment. This is the

light x-ray machine that does not look through the body but does

look through the clothing. This would be in lieu of a pat down. We

are now giving passengers the option in Kennedy Airport and in

Miami, rather than being patted down to go in front of this machine.

In addition, we are looking to put full-blown x-ray equipment at

these sites. If in fact an x-ray is determined to be necessary now,

we are actually transporting people off the airport. This can be a

long trip; it is a traumatic experience for anyone that has to undergo this. We are attempting to construct, with adequate medical personnel, x-ray facilities right in our secondary areas, so there would

be no transportation involved. We have also given people the option

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in JFK to go right to an x-ray machine without any search at all.

However, since this is a protracted process where you are actually

traveling—well, in JFK you are staying on the airport grounds but

you go into a clinic—it is probably impractical now, because people

won’t want to take another 2 hours or 3 hours to do that. So, we

are looking to have the x-ray machinery right in the secondary location.

Mr. COYNE. Thank you.

Chairman HOUGHTON. Mr. Hayworth.

Mr. HAYWORTH. Thank you, Mr. Chairman, and, Commissioner

Kelly, again, our thanks to you for coming to testify today, and obviously we have great concerns, because this is a classic case of one

of the tensions inherent in our constitutional Republic. You have

concerns for collective security and apprehend law-breakers and to

cease the spread of contraband. On the other hand, we, as American citizens, have individual rights, constitutional rights which

must be protected, and so it is that challenge of striking a balance

that brings us here today and also the legitimate oversight concerns as eloquently expressed by my colleague from Georgia.

Commissioner Kelly, let us take the legal route, if we can for a

second here. Where does Customs get its authority to conduct personal searches?

Mr. KELLY. The authority lies in title 19 of the U.S. Code. There

are several particular sections that give Customs broad search authority, and, of course, through the years—Customs has been in existence since 1789—there have been several court cases—Supreme

Court cases that have upheld that authority.

Mr. HAYWORTH. So, it is statutory authority, and based on the

court cases—Supreme Court cases and other case law—have we

drawn any limitations based on that body of case law?

Mr. KELLY. There are limitations, certainly, it depends on what

circuit you are in. In certain instances, the ninth circuit, fifth circuit, and second circuit have all put in restrictions as to when you

have to go to court to get an order to do further searches. I believe

the ninth circuit is a 48-hour time limit; the other two circuits are

24 hours, maybe just more than 24 hours, but those time limits

have been imposed.

Mr. HAYWORTH. So, there is a jurisdictional discrepancy, if you

will, based on the geographic court circuits.

Mr. KELLY. Yes, sir.

Mr. HAYWORTH. OK, so would you welcome a congressional lead

in this matter to make this uniform? Would that be helpful to your

agency?

Mr. KELLY. I think it may be helpful. Yes, consistency in that

area may be helpful.

Mr. HAYWORTH. Is Customs’ authority to conduct personal

searches different than what a city police officer might have, and

how would you describe those differences if they exist?

Mr. KELLY. Yes, it is much broader. Just, inherently, being on

the border gives Customs exceptions to fourth amendment restrictions that would be applicable to police officers on the street. For

instance, in the police situation, you would need reasonable suspicion to pat down an individual. Customs has broader authority

24

than that even though we have imposed reasonable suspicion requirements ourselves to go further into the search process.

Mr. HAYWORTH. You mention reasonable suspicion. Could you

help categorize for us or describe for us what level of suspicion a

Customs officer or a Customs inspector must have before, let us

say, for example, a pat down is conducted?

Mr. KELLY. Well, there are three levels of suspicion, as you may

know, in the law. There is mere suspicion, which is very minimal;

then, there is reasonable suspicion, which is something more than

that but not probable cause. Probable cause is when you have

enough to effect an arrest, to take someone into custody. Mere suspicion, as far as Customs is concerned, is a totality of indicators

that would lead an inspector to believe that further investigation

is needed.

We have a handbook, a list; it is not all-inclusive, but it is a list

of indicators that are used, and it is being expanded on. These are

indicators that have proven to be somewhat successful in the past.

We look for those indicators to be specifically spelled out by the inspectors before going forward. It can be one or two or more of these

indicators; we don’t have a quantifiable restriction on it. It depends, really, on the totality of the circumstances, but it is one of

those areas that, again, it is difficult to put a precise definition on,

but we look at a whole variety of factors, and, particularly, as far

as Customs is concerned, our indicators focus specifically on the

issue at hand. In other words, it is somebody potentially smuggling

some contraband in. It is the type of clothing. Are they in sunglasses or something that is adding—certainly not by itself, but we

have experienced people who don’t want eye contact or drug users

themselves who may be wearing sunglasses, but you look at a series of these indicators before it rises to reasonable suspicion.

Mr. HAYWORTH. Thank you very much, Commissioner, and thank

you, Mr. Chairman.

Chairman HOUGHTON. OK, thanks, Mr. Hayworth.

Mr. Lewis.

Mr. LEWIS. Thank you, Mr. Chairman, and thank you, Mr. Commissioner, for being here.

Along the same line that my friend and colleague from Arizona

raised, would it be helpful for Congress to establish uniform rules

to govern how long a passenger can be held without speaking to an

attorney, and govern when a judicial magistrate must be involved?

Mr. KELLY. I think it may be helpful, yes, sir. I think there are

some gray areas in the case law, and I think our inspectors would

welcome more precise direction. We are certainly looking at that internally ourselves.

Mr. LEWIS. Mr. Commissioner, it is my understanding that white

men are found to be carrying drugs more often than any other type

of traveler. If that is the case, then why do Black and Hispanic

travelers account for 43 percent of all passengers stopped and

search?

Mr. KELLY. I didn’t hear the first part of your question, but——

Mr. LEWIS. I think I tried to suggest or state that white men—

white travelers who happen to be men—white men are found to

carry drugs more often than any other type of travelers. If that is

25

the case, then why do Black and Hispanic travelers account for 43

percent of all the passengers stopped and searched?

Mr. KELLY. I think you have to factor in where the travelers are

coming from. We have identified high risk countries, and we have

identified what we consider to be high risk flights. Certain countries—which we use the NCSTR list, the State Department list

identifying countries that are source countries or transit countries

for drugs—may have a preponderance of certain ethnic groups on

those flights, more so than other flights.

Mr. LEWIS. Are you telling me a flight coming in from Jamaica

into Atlanta to Hartsfield Airport, there are going to be more Black

passengers on that plane than Whites?

Mr. KELLY. No, but there may be a significant number of Black

passengers, more so than flights coming from other places overseas;

there may be Jamaican Nationals on that flight. So, I think before

we say that the disproportionate number, I think we also have to

look at source countries—countries that have been determined to

be high risk—and take a look at the high risk flights and the passengers who are on those flights.

Mr. LEWIS. Mr. Commissioner, according to Customs, less than

1 percent of all drugs confiscated by the agency are discovered

through personal searches. As you know, these searches are

invasive and demeaning to the travelers, the vast majority of whom

are innocent. In light of the small percentage of drugs found

through personal searches and the burden these invasive searches

place on innocent travelers, do you think such demeaning tactics

are necessary in a free, civilized, democratic society?

Mr. KELLY. I certainly don’t support demeaning tactics, and I

think we have to do a much better job of being considerate to people who are subjected to this traumatic experience, and I think

some of things I have laid out that we are doing will be very constructive and helpful in this regard.

I do think that it does provide a deterrent. If we don’t do

searches at all, I think we will see a significant increase particularly as far as heroin is concerned—internal smugglers bring it in

their person or on their person into the country—but we clearly

have to do a much more professional job of how we administer this.

We would much prefer to do it through technology.

This is an unpleasant task, as you can imagine, for the inspectors. We know it is unpleasant; we know it is difficult and traumatic for the traveling public, anyone who is subjected to this, but

this process of obtaining these pellets is also unpleasant for the inspectors. We hope that we have some answers in technology.

Mr. LEWIS. Mr. Commissioner, I think we all want to prohibit

drugs from coming into the country. At the same time, we don’t

want to violate and abuse the civil rights and civil liberties of people, and I appreciate all of the changes that you are suggesting and

recommending, but there may be a mindset in Customs, there may

be a culture there that we need to deal with. How do you explain

it? How do you plan to deal with it?

Mr. KELLY. It may be a mindset, and we have to ferret it out.

We have to address it through training—again, we hope the Commission will be helpful in identifying that—and then we have to

26

address it through discipline. If these offenses, these type of practices are identified.

Mr. LEWIS. Thank you, Mr. Commissioner. Thank you, Mr.

Chairman.

Chairman HOUGHTON. OK, fine. Mr. Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman.

Mr. Commissioner, before being honored by Missouri’s Ninth District constituents to serve them here in Washington, I spent the entirety of my professional career in the criminal justice system—3

years as a court-appointed public defender and then 10 years as a

prosecutor. Part of my role, also, was to help train Missouri law enforcement officials especially in the areas of search and seizure,

laws of arrest, matters of trial advocacy and the like, and of course

one of the challenges that I had as an instructor teaching new police officers was this ever-shifting sand, if you will, regarding

search and seizure law, because I do believe—and I think even the

gentleman who just questioned you believes—that there is a compelling public interest in stemming the flow of drugs and contraband coming into this country. Yet, courts constantly wrangle with

that public interest in balancing an individual’s right of privacy, as

the gentleman from Arizona talked about earlier. And, often, court

decisions take these individual cases and have to weigh these interests and the intrusiveness of the search and the like.

My question to you, sir, is what sort of legal training is given to

a Customs agent, and, more importantly, what continuing legal

education is given to a Customs official? Because, as you know—

and you mentioned it in your testimony—these court decisions

aren’t static. I mean, each case that comes before the Ninth Circuit, the Fifth Circuit, the Second Circuit is based on precedent,

and yet the reason that they have taken the case to judge is because it presents a new wrinkle of law. So, what legal training is

given to Customs officials to try to stay on top of this shifting case

law?

Mr. KELLY. Congressman, I think it is fair to say that up until

the recent past there has been inadequate training. There hasn’t

been adequate training for inspectors involved in this very sensitive, very delicate area. We have embarked in a major training

initiative in which our counsel, our lawyers, go out and train inspectors. We have cultural awareness training, managing conflict

training.

We are bringing on board, starting June 1, a training director for

the entire agency that will enable us to monitor, to develop these

types of training programs. We haven’t had one in the agency. So,

training is extremely important in this area, and we are focusing

on it to a great extent. But I think it is fair to say that it is an

area that has needed a lot more attention than in the past.

Mr. HULSHOF. And I certainly appreciate Customs—in your testimony, that resources are necessary for the equipment and on-site

x-ray machines and the like, but, of course, before even subjecting

a traveler to even that minimal intrusiveness, there has to be the

legal basis to do it, and so I really would encourage you in that regard, and I understand that the Ninth Circuit and the Fifth Circuit

may provide in a similar factual situation different conclusions that

they finally find their way to the U.S. Supreme Court.

27

But with the legal authority, legal training, I would really encourage your organization, your group to—especially because those

agents on the frontlines are having to deal with an individual situation—you mentioned just a few of the factors. It may be that

someone is wearing sunglasses; it may be that in the mind of a

Customs agents that that passenger is somewhat furtive or suspicious, and yet trying to come up with an objective standard,

which is what we want. I think from the earlier questions, the idea

that we, in Congress, can pass a law, and we want to eliminate—

I think in your testimony—the gray areas, and yet even if we were

to pass a law, that law would be challenged given the facts of some

stop that is made by a Customs agent, and that would go through

the court system, as well.

Now, one final question: How are your inspectors—because

courts—I think you would agree with me—take a very dim view of

racial profiling—and so how are the Customs agents—especially

reading the testimony of the witnesses we are going to have here

later today—how are Customs agents trained to avoid racial

profiling?

Mr. KELLY. Well, it is specifically stated in our handbooks that

you cannot—there is prohibition against doing that, and it is in the

training factors, but it has to be reinforced. We need constant inservice training in this area. I mean, we are, on paper, saying that

this shouldn’t happen. We have to continue to reinforce that.

Mr. HULSHOF. My time has expired. Thank you, Commissioner.

Thank you, Mr. Chairman.

Chairman HOUGHTON. Thank you.

Mr. Neal.

Mr. NEAL. Thank you, Mr. Chairman.

Mr. Kelly, how much information are Customs inspectors supposed to give passengers about why they were stopped?

Mr. KELLY. They are supposed to give them information in a general way. They are not supposed to tip off criminal type information that comes in, and we do get that information. We get our own

computer system; they have look-outs from other agencies, that

sort of thing. But, for instance, they would tell someone that, generally speaking, another agency has given us information or something general, but I think in the past what has happened is that

there has been very little communication, and this has upset people; people want to know.

You know 10 years ago, 15 years ago, Customs used to stop everybody and talk to them and look in their luggage. Now, because

of the huge volume of traffic, this practice has stopped, so we have

become selective, and people understandably want to know, ‘‘Why

me? Nobody else is being stopped, and I am being stopped,’’ and we

haven’t done an adequate job in my judgment, and we are starting

to tell people why they are being detained. And we also now have

publications. We have this pamphlet that I spoke about, Why Did

this Happen to Me?, those sorts of things to better inform people

as to why they are stopped.

Mr. NEAL. As opposed to the silence that was once common?

Mr. KELLY. Yes, and silence was just a practice that people

picked up, the inspectors picked up. It wasn’t a policy, but I think

28

it is just easier dealing with people who are understandably concerned and upset that they just didn’t say anything.

Mr. NEAL. And how do they regard questions that are asked of

them when they do detain or stop a passenger?

Mr. KELLY. It is hard to generalize. Most people with authority,

generally speaking, might resent, somewhat, questions being asked

back at them, but I don’t have any specific instances of that. But

as a general practice, we want to put out more information; tell

people more specifically why they are being detained.

Mr. NEAL. Is there any directive from your agency to the inspectors that would suggest that they be evasive, for example, when

they are questioned by a passenger?

Mr. KELLY. No, not that I am aware of.

Mr. NEAL. Not that you are aware of? OK, Thank you, Mr. Chairman.

Chairman HOUGHTON. Thank you, Mr. Neal.

Mr. McInnis. Oh, not here.

Oh, I am sorry, Mr. Weller.

Mr. WELLER. Thank you, Mr. Chairman and Commissioner, and

good morning.

Mr. KELLY. Good morning, sir.

Mr. WELLER. I appreciate your testimony. I know you take your

job very seriously, and I have enjoyed the opportunity to work with

your staff on some issues as we find ways for drug interdiction.

You are on the frontline of defense trying to keep drugs out of our

country, and I appreciate the serious approach that you take with

the job. I also want to thank you and your staff for the partnership

we have as we work to provide Federal protections for Federal law

enforcement canines that play such an important role for your

agency and others from drug-sniffing and other areas, and I want

to thank you for that, and, hopefully, we will move that legislation

later this year.

I am trying to get a greater understanding of your individual

agents at our area airports, and, of course, I represent the Chicago

area, O’Hare has been one of the airports that has been singled

out. They take their job seriously, and, of course, under their responsibilities, they are given a lot of discretion and responsibility

in identifying individuals that they feel deserve greater scrutiny,

and I am trying to get a better understanding of the profile that

your individual agents are trained to look for. Can you just give us

a detailed description of the basic profile of a suspicious character

that agents are trained to identify and look for as they come

through the Customs areas at the airport?

Mr. KELLY. We don’t use profiles. The courts have said that Customs doesn’t use profiles. A profile is something that, from my understanding—and you are right, courts don’t like profiles—that is

not directly related to the offense that is being looked for; that it

is more of a stereotype, if you will. We use indicators that are

something more specific, more aimed at smuggling, for instance,

and it is very difficult to draw a picture of a smuggler, because—

as I said in my testimony—children, older people; we have had

pregnant women; we have had disabled people in wheelchairs; we

have had drugs in the wheelchairs. It is very, very difficult to give

29

a snapshot as to what a smuggler, someone bringing drugs in,

looks like.

I am told that that wasn’t the case 10 or 15 years ago. It was

much easier to stop people who may be smuggling drugs in or on

their person. The cartels have gotten much more sophisticated.

They have people who—for instance, one recent internal carrier in

Newark Airport postured himself as an automobile manufacturer

and had all papers from this particular company. He was an internal carrier. So, it is very difficult to do, and inspectors over time

buildup certain expertise, but our concern is that the success rate

for inspectors is decreasing, and we want to do a more effective job

of identifying people and then doing it with civility and fairness.

So, I can’t give you a picture of what a smuggler looks like; it runs

the cross-section of society.

Mr. WELLER. It is my understanding, though, that in Customs

that you have a passenger handbook that agents have, and it is my

understanding that there are 43 different indicators that are given

to your inspectors that suggest that they then ask for more questions. What are some of those 43 indicators?

Mr. KELLY. Again, we are redoing the handbook, and those indicators will be moved out into a lesson plan, but essentially, as I

mentioned before, someone who purchases a ticket just before they

get on a flight; purchasing a ticket for cash; wearing, perhaps, bagging clothing on a warm day; wearing long-sleeved shirts, sunglasses in some instances, but any one indicator is generally

enough to give us reasonable suspicion.

Mr. WELLER. Commissioner, I have been to Jamaica a few times

for vacation. I fly in and out of O’Hare every week, and there has

been a few times the last couple years where my briefcase has been

one of those that has been swabbed, and so I know the inconvenience of that, but you accept it, because you want airline travel to

be safe, and your folks are doing their jobs as well as others assigned for security. But is it that your inspectors are given as an

indicator which would trigger a personal search? What is it that

triggers the need to do a personal search of a passenger?

Mr. KELLY. There is a continuum, a series of questions that are

asked that individuals give conflicting answers or confusing answers or don’t—for instance, this individual who was stopped from

Ethiopia said he was going to a location in Atlanta; he had no ticket to Atlanta; had no address in Atlanta. Those sorts of—and,

again, it is difficult to pinpoint, but it is a compilation of information indicators that lead inspectors to go forward. And now we have

our highest ranking person at an airport facility make that decision

to go further with more intrusive search.

Mr. WELLER. Thank you, Commissioner.

I see my time has expired. Thank you, Mr. Chairman.

Chairman HOUGHTON. Thank you very much.

Mr. Portman.

Mr. PORTMAN. Thank you, Mr. Chairman, and, Commissioner,

thank you for being here today and talking about some difficult

issues. Your agents who are out in the field and your inspectors

have a very difficult job, and they are doing a good job in terms

of curbing the drug flow into the country. I think we need to do

a better job on the demand side to help them so that there is less

30

of a magnet here in this country. But you seized a record 1.35 million pounds of illegal drugs last year, and a lot of that came in by

airplane—looking at some of your statistics—21⁄2 tons of illegal

drugs were seized from air passengers last year, alone. And, importantly, to me, is the amount of money you are seizing from people

going back South, and I think you seized, in two border stations,

alone, along the Mexican border since October, $1.7 million. That

will begin to hit the drug cartels where it hurts and to the extent

you can continually do that on the southbound track, I think that

is going to make a major impact too. So, I want to thank what your

people—you and your people for what you are doing to try to keep

drugs off our streets, out of our schools, our neighborhoods, and,

again, we need to do more all through the system to stop the demand so that your people aren’t put at risk and so you don’t have

to do so much.

But, in the meantime, you are going to have to use some kind

of technique to get at this. You talk in your testimony about the

lengths to which people to go to hide these drugs and how difficult

it is to find these drugs. I don’t think anyone in your area in the

Customs Service wants to abuse people’s civil rights; I certainly

hope not. I hope nobody on this panel would want to do that, but

I think privacy issues are always going to be there to the extent

you have to take these kinds of measures to find these drugs that

are so cleverly concealed.

And I guess my question to you is, can’t we come up with more

technology so that we have less intrusive methods to do that? I

think to say it is not going to be an issue is naive. People’s privacy

rights are going to be at stake here, and you talked a little in your

testimony about the body scanners, and although that is also an

issue for some people, I imagine because it is much less intrusive

than a cavity search, a body cavity search, or other strip searches,

and so on, that that would be a logical way to go.

What have you asked for in terms of your appropriations for fiscal year 2000 for additional technology, and it is adequate to be

able to implement at the important airports, in particular, this

kind of technology?

Mr. KELLY. We have asked for $9 million, essentially, for x-ray

technology, but I think in this area we should be looking at some

research and development initiatives. Some of the things we are

looking at are latex breathalyzers, for instance, the ability to detect

an internal carrier, although this particular carrier was using electrical tape, but we need to look at the whole area of technology,

and I think it is just a matter of time when we will have it, but

we don’t have it now, and that is why we are forced to be involved

in this unpleasant business.

Mr. PORTMAN. Commissioner, is it a matter of time or is it a matter of time and focus? In other words, is $9 million adequate? We

are all looking for ways to keep our funding level under control this

year with the cap and so on, but this is one area where I think

there is a need to step up the technology and, in the end, have

fewer drugs coming in; have less risk for your agents, and have

fewer privacy concerns out there. Is this something where you

think $9 million—I think you indicated in your testimony that $9

million would be adequate to service maybe 75 percent of the airVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00034 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
31

ports with the kinds of x-ray technology you are looking for, but is

that adequate?

Mr. KELLY. Well, of course, there is a negotiating process, and

that is how we arrived at the $9 million——

Mr. PORTMAN. I am aware of that.

Mr. KELLY [continuing]. Through OMB.

Mr. PORTMAN. What was your request to OMB?

Mr. KELLY. I don’t remember specifically in the technology area.

Mr. PORTMAN. But it is fair to say it was in excess of $9 million.

Mr. KELLY. Yes, it is fair to say.

Mr. PORTMAN. I guess it would be helpful to this Subcommittee

and Chairman Houghton and others, Mr. Lewis, who are looking

at these issues if you could give us—if it is not on the record, off

the record—what you think your needs are, and maybe this is a

more constructive way to approach some of these problems is to try

to get the technology out there so that your people can have it, because it is a matter of time but also a matter of focus and money

and commitment to it.

One other quick question, if I have time, Mr. Chairman? There

was a Booze-Allen study done—let us see if I have this question—

Booze-Allen study done at your request that I read about in one of

the earlier questions and prepared a report for you in February

1999. What did the firm recommend with regard to conducting a

survey of air passengers and Customs inspectors, and what has

been your response?

Mr. KELLY. The firm essentially recommended better communication with the traveling public telling them what Customs is all

about; what the Customs mission; what can happen to them in the

search procedure. That is what we asked them to pretty much

focus on. They did a survey of people who had gone through the

secondary area but were not personally searched. So, it was of

value, and we have adopted much of those recommendations to better communicate. We have signs in the rear of this room that we

have now at airports; we have exit comment cards that you can

comment on the conduct of the Customs inspectors and the process.

Essentially, the Booze-Allen report was focused on communication

and recommending that we better communicate to the traveling

public what we do.

Mr. PORTMAN. And you have implemented most of those recommendations?

Mr. KELLY. Yes, sir.

Mr. PORTMAN. Thank you, Mr. Chairman. Thank you, Commissioner.

Chairman HOUGHTON. Yes, Mr. Lewis.

Mr. LEWIS. Let me just ask Commissioner Kelly, in responding

to one of my colleagues, he suggested that one reason for stopping

someone or detaining someone may be that the person is wearing

sunglasses or they may be wearing baggy clothes. But, you know,

in America these days, many of our young people, young men in

particular—if you go into the City of Atlanta or walk the streets

of Washington or New York, almost any major city in America or

go into almost any major high school, you will see young men wearing baggy clothes. So, if we go around detaining people because of

32

wearing baggy clothes or maybe wearing sunglasses, I think we are

going to be in serious trouble in America.

Mr. KELLY. That would not be the only indicators. However, I did

mention in my opening comments that we have a task force that

we have brought together to look at these indicators to see if they

are relevant; to see—these indicators, most of them, were developed several years ago.

Mr. LEWIS. But I think many of these young people are trying

to make a statement—maybe it is style; maybe it is a cultural

statement.

Mr. KELLY. But it certainly wouldn’t be the only reason nor

would we accept that as a reason for stopping someone and engaging them in this process. But I think the point is that we have to

take a look at all of these indicators to see if they are relevant to

1999 and the next century.

Mr. LEWIS. Thank you, Mr. Chairman.

Chairman HOUGHTON. All right. Mr. Commissioner, we are going

to let you go in just a second.

I just have an overall question. You know, in a democracy we

have this sense of freedom, and yet people take advantage of our

openness. If you looked—I mean, you have only been in this job 9

months—if you look out, let us say, 5 or 10 years, are we going to

be able to do the job that is necessary in terms of your standards,

yet avoid the pitfalls which Mr. Lewis and others have pointed out?

Mr. KELLY. I hope so, Mr. Chairman. I think we are putting a

lot of hopes on technology, both as far as the issue of people coming

into the country and cargo coming into the country as far as drugs

being transported, and we estimate that there are at least 300 metric tons of drugs that come into the United States every year. We

examine between 2 and 3 percent of all cargo that comes into the

country. We have to rely on better technology in the future as we

see this explosion of trade all around us. We need more effective

systems to cope with it.

So, I am hopeful—we have seen what has happened in the last

10 to 15 years as far as technology development—I am hopeful in

the next 10 or 15 years that we will have the technology to help

us better protect our borders and also protect the civil rights of everyone coming into our country.

Chairman HOUGHTON. Well, technology is sort of a broad word,

and there is a lot of technology out there. Do you have surveillance

teams? Do you have somebody who is taking a look at what other

Customs Services are doing around the world? Do you have people

combing over what is being developed in Silicon Valley or in Austin, Texas, or the Research Triangle? How do you get at that technology?

Mr. KELLY. We work with the Department of Defense; we work

with other governmental agencies. We got a very generous supplemental budget in October 1998 for flight technology along the—

mostly along the southern border, the border between United

States and Mexico, and we are in the process of deploying that

technology, and that won’t be fully deployed until at least 2002.

Technology is constantly developing. One of the problems with

technology, even as we are deploying it, is the through-put rate. As

far as vehicles are concerned, for instance, it takes us maybe 20

33

minutes, 30 minutes to do a truck now, even with the most modern

technology, but we hope in the future that it will be developed to

the point where we can do it in a much faster way or do it where

the vehicle, itself, doesn’t go through the x-ray; that the x-ray goes

over the vehicle.

So, we are looking at the entire area. As I said, we are looking

at things such as latex breathalyzer tests; we are looking at any

way that we can to do these less intrusive searches, but it is an

area—of course, now we are talking about searches of persons, but

it also concerns us as far as cargo coming into the country. We will

have by 2005, in essence, doubled the amount of trade that is coming into the country in 1999. So, we need resources, and that is

why I say technology, but it looks like we are not going to get a

lot more people, and we need people, though, to run the technology,

but I think the answer to this one lies in technological development.

Chairman HOUGHTON. Well, I don’t know if the other members

of the panel feel this way, but I think it is your personal responsibility to make sure there is no racial profiling going on. It is our

responsibility to work with you, and to make sure you have the

proper equipment. I hope you will tell us if we need to do other

things to help you in your overall task.

Are there any other questions? If not, I would like to excuse the

Commissioner. Commissioner Kelly, thank you so much for your

testimony.

Mr. KELLY. Thank you.

Chairman HOUGHTON. Now, I would like to call the other panel

if they could come up here—Amanda Buritica, who was a passenger at Port Chester, New York; Janneral Denson, a passenger

at Ft. Lauderdale, Florida; Mr. Ed Fox, who is an attorney of Ed

Fox & Associates in Chicago, Illinois; Sheri Lynn Johnson, from the

Cornell University School of Law in Ithaca, New York; and, also

Mr. Robert Tobias, president of the National Treasury Employees

Union.

Well, ladies and gentleman, thank you very much for being with

us today. Ms. Buritica, would you please begin the testimony.

STATEMENT OF AMANDA BURITICA, PORT CHESTER, NEW

YORK, PASSENGER FROM HONG KONG TO SAN FRANCISCO

Ms. BURITICA. Good morning.

Chairman HOUGHTON. Good morning, and if you could pull that

microphone down so that we could hear you. Thank you very much.

Ms. BURITICA. Thank you very much for inviting me here today.

My name is Amanda Buritica, and I live in Port Chester, New

York. I have a part-time job as a crossing guard, and I had a very,

very bad experience when I went on a trip around the world, and

I came back and made the last stop in San Francisco, and as I got

down from the airplane and went to pick up my luggage, one inspector asked me for my passport. I gave him my passport; he

looked up on the first page where my name is and my place of

birth. Then he pointed to another person in U.S. Customs, and he

said, ‘‘Go to that person.’’

I went to that person. That person also opened my passport to

the page where my name is and my place of birth, and she says

34

to me, ‘‘Who are you traveling with?’’ And I said, ‘‘Nobody.’’ Then

she said, ‘‘Where were you born? You were born in Columbia?’’ And

I said, ‘‘Yes.’’ So, then she gave me back my passport, and she

pointed to another U.S. Customs, and said ‘‘Go to that person.’’

And I went to that person, and she asked me to open my luggage, and she started taking out all my belongings, piece by piece,

out of the suitcase. When she got to the bottom of the suitcase, she

pulled up the lining of the suitcase, and she was feeling the bottom

of the suitcase everywhere and sniffing her fingers, and the luggage was tore apart completely.

Then she asked me to follow her. Behind her was a door; she

opened the door, and she said, ‘‘Follow me here.’’ I followed her into

the room. She then said to me, ‘‘I have to do a pat search.’’ I said,

‘‘Why?’’ And she said, ‘‘I just have to do a pat search.’’ And I said,

‘‘No, I don’t need for you to do a pat search on me.’’ And then she

said, ‘‘If you have nothing to hide, everything is going to be OK,

and you are going to be on your way.’’ I know I didn’t have anything to hide, so she did the pat search.

Then she went out, and she came back, and she says, ‘‘You have

to do a strip search.’’ I said, ‘‘No, no, no way, no. I don’t want you

to do a strip search.’’ And she said, ‘‘Well, if you have nothing to

hide, everything is going to be OK, and you are going to be on your

way.’’

Another inspector came in, and they both ordered me to take my

clothes off. I was so scared. I was so scared and so embarrassed.

It was the most humiliating, degrading thing that I ever had to go

through. They made me take off all my clothes, and one of the inspectors said to me, ‘‘Bend over.’’ As I was bent over, she then was

kicking my legs saying, ‘‘More, more, more,’’ and she kept kicking

my legs, ‘‘More, more, more’’ until I was on four legs. She did a cavity search. It was horrible; it was very, very humiliating. Then she

told me to face her. She told me to lift up my breasts; she looked.

Then she told me to lift up my hair; she looked; she inspected me

everywhere.

Then she went out, and she came back again in the room and

says to me, ‘‘You have to follow me to a—we have to take you to

a clinic. It is in the airport, and we have to take x-rays of you.’’

I said, ‘‘No, I don’t need x-rays. I don’t want to go anywhere. I just

want to go home.’’ And she said, ‘‘You are not going anywhere. You

have to go to the clinic to have the x-rays taken.’’ I said, ‘‘No, I

don’t want to go; I don’t want to go.’’ And she says, ‘‘Well, then if

you are not going with us to the clinic, then we will put you in jail.’’

I said, ‘‘No, I just want to go home.’’ And she says, ‘‘Well, if you

have nothing to hide, everything is going to be OK, and you are

going to be on your way.’’ I had nothing to hide. I agreed to follow

her to the clinic to have the x-rays taken, and the x-rays—the man

who had the x-rays said that there were some spots there. I said,

‘‘It is the food, the lunch that I had on the plane.’’

So, I followed them again to the same little room from the beginning and then a man came in, a very tall man came in with cuffs

and said they were going to handcuff me and take me to the hospital. I said, ‘‘No, I am not going to any hospital. I am not sick.

I want to go home.’’ And he said, ‘‘No, you have to go with us to

the hospital.’’ I said I didn’t want to go, and he says, ‘‘We will put

35

you in jail, then.’’ I didn’t want to go to jail. I have never done anything wrong in my life, never. I was so scared; I was shaking; I was

crying, and then, finally, I agreed to allow them to take me to the

hospital.

As I got to the hospital, they gave me a—a nurse came in carrying this big jug of some clear liquid and she says to me, ‘‘This

is for you to drink it all.’’ And I says, ‘‘No, I don’t want to drink

that. I am not thirsty. I don’t want—what is it?’’ And then she said,

‘‘It is something to make you go to the bathroom.’’ But I had already gone to the bathroom twice in the hospital. And the inspector

checked the bowel movement both times and both times said ‘‘Negative, negative.’’

Then it was a horrible night. I spent the whole night in the hospital and the whole day. I was there 25 hours in that hospital with

nurses and doctors. When I told the nurse that I didn’t want to

drink the liquid, the nurse said, ‘‘Well, if you don’t want to drink

it, we are going to put tubes through your nose, and you are going

to have it anyway.’’

And a doctor came, a man wearing a white coat came, and he

said he was going to put a needle in my arm, and I said, ‘‘No, I

don’t want any needles in my arm.’’ He grabbed my arm and he

pulled it close to him, and I said, ‘‘No, I don’t want needles in my

arm.’’ I pulled it away. Then, he grabbed my arm again, and he—

it was awful; it was awful. Whether I wanted it or not, they wanted

to do whatever they wanted to do to me.

So, finally, he was determined that he was going to do it anyway,

so he did it; he put the needle in my arm. I was so sick—I got so

sick through the whole night, they had to transfer me to the intensive care unit. I was very dehydrated; I got fever; I was very, very

sick. They made me very sick.

I spent the whole night there. In the morning, a doctor came in;

he ordered x-rays, and those x-rays—nobody came to tell me the results of those x-rays until about—I would say about 1 p.m. I heard

a doctor talking on the telephone saying, ‘‘I have this Columbianborn woman here. I looked at him, because I heard what he was

saying, and he looked at me; he turned around the other way so

I could not hear what he was saying, and then he said, ‘‘The x-rays

are clean.’’

As soon as he said that, the inspectors who were with me all the

time since the night before, they ran out of the room so fast, I

never saw them again, and no one came to tell me that they were

talking about my x-rays, and they were clean. About 5 p.m., a

nurse came and told me that I should try and get up and get

dressed, because I had to go back to the airport. Someone helped

me put my clothes on.

I was very sick, very dizzy, and then two inspectors came and

took me back to the airport. At the airport, they told me to gather

all my belongings; they were there in the same place where they

were the night before, all messed up. I was so sick; those people

made me sick. I gathered all my belongings, and then they said,

‘‘OK, you can go now.’’ I didn’t know where to go.

No one explained anything to me, and that is just a little part

of the whole story. It is a very long story, but I know my time is

very limited.

36

[The prepared statement follows:]

Statement of Amanda Buritica, Port Chester, New York, Passenger from

Hong Kong to San Francisco

Good Morning, Chairman Houghton, Ranking Member Coyne and other Members

of the Committee. Thank you for inviting me here to testify before you today.

My name is Amanda Buritica and I live in Port Chester, New York, where I work

part time as a crossing guard. I am here because of my experience with the U.S.

Customs Service. Because of this experience, I sued the Customs Service and won

a civil judgement of $450,000.

On September 22, 1994, I was traveling from Hong Kong to San Francisco. When

I arrived at the San Francisco airport, a man from the U.S. Customs Service asked

me for my passport, took a look at it, and told me to go to another Customs employee, a woman. She took my passport, opened it up, and asked me who I was traveling with. I said, nobody.

She gave me back my passport and sent me to another Customs employee, a

woman seated at a table. This woman asked me to open my luggage and I did. She

then picked up everything in the luggage, piece by piece, feeling them and smelling

them. When she got to the bottom, she ripped off the lining and again felt and

sniffed it. The luggage was ripped apart completely.

She then told me to follow her behind a little door, and told me she had to pat

search me. I asked her why. I asked her what she was looking for. I didn’t get an

answer. I was in this tiny little room and scared to death. I started shaking and

sweating. When I protested, she said ‘‘If you have nothing to hide, everything will

be all right. You will be on your way.’’

I had nothing to hide, so I let her do the search. She went out again and then

came back. She said she had to do a strip search. I said, ‘‘Oh, God, why are you

doing this to me?’’ I got more scared. She again said ‘‘If you have nothing to hide,

you will be on your way.’’

She made me take off all my clothes. Then she told me to bend down, and she

kept kicking my legs, telling me ‘‘more, more.’’ And as she said ‘‘more, more,’’ she

would kick my legs, until I was on all four. She told me to get up and lift up my

breasts. She told me to lift up my hair. She searched everywhere.

She again went out and came back. She told me I had to go to a clinic in the

airport to have x-rays taken. When I protested, she said, ‘‘You have to have the xrays.’’ Again she said, ‘‘If you have nothing to hide, you will be on your way.’’ I

agreed to go to the clinic.

The man who read the x-rays said there were some black spots in there and nothing else could be done at the clinic. I had to be taken to a hospital. A big man came

with handcuffs and said he was going to handcuff me because they had to transport

me to a hospital. He said ‘‘It is either go to the hospital or go to jail.’’

They took me to a hospital. When we arrived, a nurse gave me a huge plastic jug

with some clear liquid in it, and said ‘‘this is for you to drink.’’ I said ‘‘no, I am

not thirsty.’’ She said I had to drink it. She said ‘‘If you don’t drink it, we will put

tubes in your nose and you will drink it anyway.’’ It tasted awful.

I started going to the bathroom and having big stomach cramps. I got so sick they

had to transfer me to the intensive care unit. I was so dehydrated they had to give

me an IV. This lasted the whole night. The Customs people were with me the whole

time, even when I went to the bathroom.

The next day, they took four more x-rays. At one o’clock in the afternoon, I heard

the doctor say ‘‘the x-rays are clean.’’ I heard the Customs inspectors leave, and I

never saw them again. About five o’clock, a nurse told me I had to try to get up

and get dressed because I was going back to the airport.

When I got back to the airport, they then told me I had to sign some papers. My

luggage was still there in a mess. I was so sick, I could not lift the luggage. I signed

the papers and they told me I could go. Nobody ever apologized to me. I left.

For twenty-five hours, I could not talk to the outside world. I could not make a

phone call. I could not speak to an attorney. I was held captive.

Mr. Chairman, Members of the Subcommittee, nobody should have to go through

what I went through. Thank you for the time and the opportunity to testify.

have some questions for you a little later.

Chairman HOUGHTON. Thank you very much, and maybe we will

f

Ms. Denson, would you like to testify?

37

STATEMENT OF JANNERAL DENSON, PALM BEACH COUNTY,

FLORIDA, PASSENGER FROM JAMAICA TO FORT LAUDERDALE

Ms. DENSON. Good morning.

Chairman HOUGHTON. Good morning.

Ms. DENSON. My name is Janneral Denson. I am here on behalf

of myself and my son, Jordan, to tell you what happened to me and

my son in the hands of the U.S. Customs Service and the agents

at Jackson Memorial Hospital on February 14, 1997 to February

16, 1997.

I am a U.S. citizen. I was born, raised, and live in Palm Beach

County, Florida. What I am here to tell you is not reasonable.

On February 14, 1997, about 2 p.m., my flight from Jamaica had

arrived in Ft. Lauderdale. My flight to Miami that morning had

been canceled by the airline. We were attempting to get a visa for

my husband to come to the United States, and we had been reviewing various immigration documents and notes. I had made notes of

information that we would need to know at our meeting with Immigration. I had these documents with me when I returned to the

United States. At that time, I was approximately 61⁄2 months pregnant.

After getting off the plane at Ft. Lauderdale Airport, I walked

through the Customs area. The Customs agent stamped my passport and let me pass. As I walking to the exit door, another agent

stopped me and asked to search my luggage. After she searched my

luggage and found nothing, she asked why was I in Jamaica. I told

her the details of my visit with my husband. I also showed her immigration documents, marriage certificate, notes, wedding pictures,

my birth certificate, my husband’s birth certificate, and pictures of

my two children, Darrick and Breanna.

After showing her these documents, she tore a piece a paper from

my notepad and ordered me to write my full name, my address,

where I worked, the phone number of my work, and to describe my

husband. I did that and gave it to her, and she left, leaving me

with another agent.

After more than an hour, I told the agent that I was hungry, and

I hadn’t eaten all day. It was now late afternoon, and I was ignored. Time passed and I had to use the bathroom. I was taken by

two agents to the bathroom where they had me lean against the

wall, spread my legs so that they could search me. After that, they

let me go to the bathroom while they watched. I had been wearing

a pantyliner that day, because I had been spotting. They ordered

me to show them the pantyliner as well as the tissue that I used

to wipe myself after I urinated.

Up until that point, I had full cooperated with them in every

way, and then I asked to leave, but I was told I was going to be

taken to a hospital in another city, that city being Miami. I was

getting very scared for my children and my family and myself, and

I told them that I wasn’t going anywhere, and what was this all

about? They ignored me, so I took out a piece a paper, and I started writing down the badge number of the agent. I also was writing

down the way I was being treated. All of my personal belongings

were taken from me at that time. I asked to call my mother. She

was expecting me, and my kids had to be picked up from the day

38

care center. I was getting really scared, and she refused to let me

call.

The agent read me some legal rights from a piece of paper and

told me to sign it, and I refused. I asked to a call a lawyer; the

agent said, ‘‘What for?’’ I told I believed that I was being arrested

and that you are allowed a phone call. She refused. They handcuffed me and put me in a van and drove me to Miami.

When I got to the hospital, I was asked a lot of questions, and

my picture was taken. Later, I was taken to a room where they had

me change into a hospital gown. A doctor came in and asked if she

could examine me, and I asked her what type of examination, and

she told me a vaginal examination. And then she asked me how far

along was my pregnancy? I told her I was almost 7 months pregnant. The doctor turned to the agent and told her that I was too

far along for an examination; that I needed to be taken to the labor

and delivery ward.

They handcuffed me again and took me there. After waiting and

waiting, they took my blood pressure and did some other tests.

Then they gave me a urine sample. After this, I was put on a bed

and handcuffed to a bedrail. The handcuffs were so tight it hurt,

and I told the agent, and she said, ‘‘Oh, don’t worry about it.’’ And

I was scared. I didn’t know what was happening. I didn’t know

what was going to happen.

The first agent left and another agent came into the room, and

he loosened the handcuffs for me. Later, the first agent and a doctor came back in the room, and we discussed my pregnancy. At

that time, the doctor had a portable sonogram machine and

brought it in because she wanted to check me internally. She then

discovered that I had a problem pregnancy, and I don’t know if you

want me to go into the details of the problem pregnancy, but the

doctor put it in writing and told me that I should give it to my doctor.

Based on her examination with the sonogram, she told the

agents that I had nothing inside of me but a child and that there

was no room for anything else. They then took me off the bed and

handcuffed my hands again. I reminded the first agent that I didn’t

have anything in my luggage and that I didn’t have anything inside of me, and I asked if I could call home. She refused.

I was then taken to some place called Ward D. While in the elevator, another doctor told the agent that he didn’t believe I had

anything inside of me but a baby. I was taken to a room and again

handcuffed to a bed.

That night, I asked for something to eat, and they gave me orange juice. Having not eaten all day, I needed something to eat.

They put a frozen sandwich in front of me they had put into a

microwave to warm up. It was really like a bunch of mess. It made

me sick to look at it. I was told that I would not get anything until

the morning.

Then the doctor brought in a clear jug of something called Go

lyte, and I was ordered to drink it, and I asked, ‘‘What for?’’ The

first agent told me I had to pass three clear stools before I could

leave. I was scared to death for my child. I told the agent, ‘‘That

is a laxative, and pregnant people should not take a laxative.’’ I refused to drink it at first. They again handcuffed me to the bed. I

39

laid there that night crying for a long time, and then I asked if I

could call my mother and let her know what was going on. The

agent said I couldn’t call anyone.

In the middle of the night, I had to go the bathroom. They forced

me to use the bedpan. I had a bowel movement, and they examined

it. After they examined it and found nothing, they handed it to me

and made me empty it and clean out the bedpan. I was again

handcuffed to the bed.

The next morning, they gave me a cold breakfast that I could not

eat, though I tried. I had some orange juice and water. At that

time, I heard the first agent outside my door call me a ‘‘thing.’’ She

said, ‘‘This thing has been in here since Friday, and she won’t eat

anything.’’

That afternoon, the first agent was replaced by another agent

who told me the only way I was going to get out of there was to

drink the laxative, and I agreed. I didn’t know what else to do. He

mixed it with juice and ice and told me that I had to drink 4 cups.

I started drinking it. There I was, handcuffed to a bed. I was so

scared, and I drank a laxative that might hurt me and my child.

I threw up. Members of this panel, what was happening to me cannot be described in words, and I was forced to drink it until I could

hold it down.

By the next morning, I passed two clear stools. About 4 hours

later, the first agent returned to take me back to Ft. Lauderdale.

They said they called my mother, but the truth is they never called

my mother. My mother had been calling hospitals until she found

me, and then the agent told her that I would be at the Ft. Lauderdale Airport in a couple of hours. I was taken to the Ft. Lauderdale

Airport and nobody was there; they just left me.

For the next 2 days, I had severe diarrhea and incredible pain.

After that, I began bleeding. I was taken to the hospital. After an

examination, I was sent home and told to stay in bed. The bleeding

never stopped; the pain never went away. Eight days later, the

bleeding increased, and I was rushed to the hospital. At that time,

doctors had to perform an emergency cesarean. When my son, Jordan, was born, he only weighed 3 pounds, 4 ounces. He was taken

from me and placed in a prenatal intensive care unit where he

stayed there for over a month. At this point, we don’t know what

permanent effects premature birth will have on my son, and there

is not a waking hour that goes by that I don’t worry about it.

The very fact that I am here speaking before you points out the

greatness of our country, but what I and many other African-Americans and others have gone through points out a great failure in

our country. Conduct such as this is both illegal and un-American,

and, in the long run, can only serve to drive a wedge between you,

the government, and the citizens of our country.

[The prepared statement follows:]

Statement of Janneral Denson, Palm Beach County, Florida, Passenger,

from Jamaica to Fort Lauderdale

Good Morning. My name is Janneral Denson. I am here today on behalf of myself

and my son, Jordan, to tell you what happened to me and my son at the hands of

the United States Customs Service and their agents at Jackson Memorial Hospital

on February 14, 1997 to February 16, 1997.

I am a United States citizen. I was born, raised and live in Palm Beach County,

Florida.

40

On February 14, 1997, at about 2:00 in the afternoon my flight from Jamaica had

arrived in Fort Lauderdale. My scheduled flight to Miami that morning had been

canceled by the airline. I had been in Jamaica for two days visiting with my husband and his family. We were attempting to get a visa for my husband to come to

the United States and we had been reviewing various immigration documents and

notes. I had made notes of information that we would need to know for our meeting

with Immigration. I had these documents with me when I returned to the United

States. At that time, I was approximately six and one-half months pregnant.

After getting off the plane at the Fort Lauderdale Airport, I walked through the

Customs area. The first customs agent stamped my passport and let me pass. As

I was walking to the exit door, another agent stopped me and asked to search my

luggage. After she searched my luggage and found nothing, she asked why I was

in Jamaica. I told her the details of the visit with my husband. I also showed her

the immigrations documents, notes, wedding pictures, my birth certificate, my husband’s birth certificate, my social security card, and pictures of my two children,

Darrick and Breanna.

After showing her these documents, she tore a piece of paper from my notepad

and ordered me to write my full name, my address, where I worked, the phone number of my work, and to describe my husband. I did that, gave it to her and she left,

leaving another agent with me.

After more than an hour, I told the agent that I was hungry, that I hadn’t eaten

all day. It was now late afternoon. I was ignored. Time passed and I had to go to

the bathroom. I was taken by two agents to the bathroom where they had me lean

against the wall, spread my legs, so that they could search me.

After that, they let me go to the bathroom while they watched. I had been wearing a panty liner that day because I had been spotting. They ordered me to show

them the panty liner, as well as the tissue that I used to wipe myself after I urinated.

Up until that point I had fully cooperated with them in every way. I then asked

to leave but was told that I was going to be taken to a hospital in another city, that

City being Miami. I was getting very scared for my children, my family and myself,

and told them that I wasn’t going anywhere and what was this all about. They ignored me so I took out a piece of paper and started writing down the badge number

of each agent. I was also going to describe the way I was being treated. All of my

personal belongings were then taken away from me. I asked to call my Mother. She

was expecting me and my kids had to be picked up from the day care center. I was

getting really scared. She refused to let me call.

The agent then read me some legal rights from a piece of paper and told me to

sign it. I refused. I asked to call a lawyer. The agent said what for? I believed I

was being arrested and I told her so and your supposed to be allowed a phone call.

She refused. They handcuffed me, put me in a van and drove me to Miami.

When we got to the hospital, I was asked lots of questions and my picture was

taken.

Later I was taken to a room where they had me change into a hospital gown. A

doctor came in and asked if she could examine me. I asked her what kind of examination and she said a vaginal examination. She asked me how far along was my

pregnancy. I told her almost seven months, and the doctor turned to the agent and

said that I was too far along for such an examination and that I needed to be taken

to the Labor/Delivery ward. They handcuffed me again and took me to that ward.

After waiting and waiting, they took my blood pressure, did some other tests, and

had me give them a urine sample. After this, I was put on a bed and handcuffed

to a bed rail. The handcuff was so tight it hurt. I told the agent. She said don’t

worry about it. I was scared. I didn’t know what was happening. I didn’t know what

was going to happen. The first agent left and another agent came into the room.

He loosened the handcuff.

Later, the first agent and the doctor came back into the room and we discussed

my pregnancy. At that time, the doctor had a portable sonogram machine brought

in because she wanted to check me internally. She then discovered that I had a

problem pregnancy. I don’t know if you want the details of the problem pregnancy,

but the doctor put it in writing and told me to give it to my doctor. Based on her

examination with the sonogram, she told the agents that I had nothing inside of

me but my child and that there wasn’t room for anything else. They then took me

off the bed and handcuffed my hands again. I reminded the first agent that I didn’t

have anything in my luggage, and that I didn’t have anything inside of me and I

asked if I could go home.

She refused. I was then taken to someplace called ward D. While in the elevator,

another doctor told the agent that he didn’t believe that I had anything inside me

other than my baby. I was taken to a room and again handcuffed to a bed.

41

That night I asked for something to eat. They gave me some orange juice. Having

not eaten all day, I needed something to eat. They put a frozen sandwich in a microwave and handed me the soggy mess. It made me sick to look at it. I was told that

I would not get anything until the morning. The doctor then brought in a clear jug

of something called Go lyte and I was ordered to drink it. I asked what for? The

first agent told me that I had to pass three clear stools before I could leave.

I was scared to death for my child. I told the agent, that’s a laxative and pregnant

people should not take a laxative. I refused to drink it. They again handcuffed me

to the bed, I laid there that night crying for a long time. I then asked if I could

call my mother and let her know what was going on. The agent said I couldn’t call

anyone. In the middle of the night, I had to go to the bathroom. They forced me

to use the bedpan. I had a bowel movement and they examined it. After they examined it and found nothing, they handed it to me and made me empty and clean out

the bedpan. I was again handcuffed to the bed.

The next morning they gave me a cold breakfast that I could not eat, though I

tried. I had some orange juice and water. At that time, I heard the first agent outside my door call me a ‘‘thing.’’ She said ‘‘that thing’s been here since Friday and

she won’t eat’’.

That afternoon, the first agent was replaced by another agent. He told me the

only way I was going to get out of here was to drink the laxative. I agreed, I didn’t

know what else to do. He mixed it with juice and ice and told me I had to drink

four cups. I started drinking it. There I was, one hand handcuffed to a bed, so

scared that I drank a laxative that might hurt me and my child. I threw up. Members of this panel, what was happening to me cannot be described in words and I

was forced to drink four cups until I could hold it down.

By the next morning, I passed two clear stools. About four hours later, the first

agent returned to take me back to Fort Lauderdale. They say they called my mother. The truth is that they never called my mother. My mother had been calling hospitals until she found me and then an agent told her I would be at the Fort Lauderdale airport in a couple of hours.

I was taken to the Fort Lauderdale airport. Nobody was there. They just left me.

For the next two days, I had severe diarrhea and incredible pain. After that, I

began bleeding. I was taken to the hospital. After an examination, I was sent home

and told to stay in bed. The bleeding never stopped. The pain never went away.

Eight days later, the bleeding increased and I was rushed to the hospital. At that

time, the doctors had to perform an emergency cesarean. when my son, Jordan, was

born, he weighed three lbs., four ounces. He was taken from me and placed in the

prenatal intensive care unit where he stayed for over a month. At this point, we

do not know what permanent effects the premature birth will have on my son.

There is not a waking hour that goes by that I don’t worry about it.

The very fact that I am here, speaking before you, points to the greatness of our

country. But what I, and many other African-Americans, have gone through, points

to a great failure in our country. Conduct such as this is both illegal and Un-American, and, in the long run, can only serve to drive a wedge between you, the government, and the citizens of our country.

Chairman H

Mr. Fox, would you like to testify?

OUGHTON. Thank you very much, Ms. Denson.

f

STATEMENT OF EDWARD M. FOX, ATTORNEY, ED FOX &

ASSOCIATES, CHICAGO, ILLINOIS

Mr. FOX. Thank you. Good morning. I am an attorney presently

representing about 90 African-American women who have been

subjected to abusive pat downs, strip searches, visual cavity

searches, and, in some cases, physical cavity searches and x-rays

that have been done or caused by employees of the U.S. Customs

Service.

I have talked to many other women whose cases I have not taken

for various reasons, such as because the case is too old or a case

involving an airport other than O’Hare Airport in Chicago.

42

In none of these instances were drugs found. In all the instances,

the reasons for the searches were minimal or pretextual or otherwise were simply non-existent. In all the cases, the degradation of

the women was at maximum.

The origins of the case I am doing sheds light on the clearly discriminatory nature of the searches. In August 1997, Sharon Anderson was searched upon coming home from a vacation in Jamaica.

She was and is an African-American schoolteacher with the Chicago Board of Education. She is middle-aged. She subsequently

came to talk about what she had endured. I filed a case on her behalf in October 1997.

The case I filed at that time did not contain allegations of racial

discrimination nor did it contain many of the allegations that eventually found their way into subsequent complaints. I did not have

information at that time showing a racial or gender bias, and I certainly had no idea of the enormity of the problem. It was simply

an unlawful search case at that time.

Subsequently, in about late March 1998, Ms. Anderson called me

upon seeing a news report of another woman, Denise Pullian. Ms.

Pullian described a remarkably similar scenario as that undergone

and described by Ms. Anderson.

Thereafter, my office called the news station, as did my client,

to see what information they had that might be useful. Thereafter,

Ms. Anderson told others about what she went through. I and the

news station started receiving many telephone calls from only African-American women who also recounted startlingly similar stories. Two of the women were travel agents who had known of tens

of such cases. Thus, the word of mouth coupled with additional

news stories on the same subject matter served to embolden many

women who before had felt too alone, scared, and isolated to come

forward.

It quickly became apparent that there was a racial component to

the searches—only African-American women were calling. Additionally, many of them recounted stories of seeing only other African-American women in the secondary area where further questioning and searching by Customs are commenced.

Resulting from this and further news report, I have now received

telephone calls or visits from women in many different States, including Illinois, Florida, Texas, Pennsylvania, Maryland, California, New Jersey, Ohio, Michigan, New York, Virginia, Georgia,

and also Puerto Rico. Most of these women have come through an

international airport terminal and all have described similar ordeals. The number of women I spoke to greatly exceeds 100. They

are predominantly African-American.

Because you have just now heard from women whom have endured this, I am not going to go into detail regarding what they

go through. However, there is two outrageous facets to the examination which I believe must be examined. First, and the most appalling, is that the women are literally held incommunicado during

the entire procedure. This means not only can they not contact an

attorney or other person by telephone, they are not even permitted

to tell friends that are picking them at the airport why they are

running late. This very Kafkaesque scenario lasts for as long as

Customs desires it to last. Thus, if they take a woman to the hosVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
43

pital in handcuffs to be further x-rayed and examined, as sometimes occurs, no telephone call is still permitted despite the great

length of time that will lapse. The fear that these women go

through during these ordeals is very real.

The second fact is that, often, a young, low-ranking government

official who does not even obtain a supervisor’s approval is conducting these searches and making critical determinations and decisions regarding how these women are to be treated.

There are many reasons motivating the discrimination. One of

the overriding themes of the searches, from what I have seen in the

Chicago area, is that Customs simply does not believe that Black

women can afford to travel unless they are drug couriers. It is often

noted by Customs in this incident logs—and I have seen many,

many incident logs now that Customs has produced in the context

of these women—that a search is recommended merely because

this African-American woman has traveled frequently without any

evidence of wrongdoing.

For example, in the responsive letter to one woman, Customs

wrote, justifying a strip search, that—and I am quoting—‘‘It was

quickly determined that this was your third trip out of the United

States in the last 3 months.’’ That woman was a businesswoman.

It is disturbing and absolutely true that often Customs recommends searches for these African-American women based solely

on the amount of travel they do. This is so, because the logs indicate a recommendation to search before the woman will have even

returned from her trip and thus without knowing the reason for

travel, her occupation, or, indeed, anything about the woman, and

I have some examples from Customs logs.

One remarks, dated October 28, 1995—this is from a log of an

individual woman—she was a passenger analysis unit lookout, and

this is what it—

Passenger has three trips within the past 8 months; no travel prior to that time.

Passenger has air only passage to Jamaica. Passenger was a no show for her return

flight on October 28, 1995. A secondary exam is recommended.

Another example,

Chicago passenger alert unit lookout; code appropriately and refer to U.S. Customs Service secondary, 100 percent, please; U.S. Customs Service. Very frequent

travel to Montego Bay, Jamaica. Claims to be a travel agent/antique dealer, but she

has no IATA. Please report name and exact address of antique shop.

In fact, one woman, Patricia Appleton—and she was the woman

about who I just quoted—was searched so frequently that a Customs inspector wrote in the log after one such strip search as follows, ‘‘Please stop the madness.’’ The madness, however, did not

stop there. Ms. Appleton, a travel agent, has continued to be

searched time after time after time.

Finally, and very briefly, Customs’ own statistics reveal a highly

disproportionate amount of African-American women being

searched at O’Hare Airport. In 1997, Customs’ own statistics show

that of all strip searches undertaken broken down by race and gender, Black women were searched 46 percent of these strip searches.

By way of comparison, white females were searched only 23 percent of the time, and white males were searched only 11 percent

of the time. When this is coupled with the fact that the percent of

negative searches of Black women was far greater than any other

44

group—much more than 80 percent—and the fact that Black

women are a much smaller percent of the traveling population than

whites, it is evident that racial profiling and thus discrimination

occurs regularly and frequently.

And one additional thing regarding these statistics that you have

seen and that I have seen. I would estimate based on the large

amount of clients that I have and the many incident logs that I

have that probably two to three times more Black women are

searched than what Customs admits to.

In conclusion, there is a Supreme Court case that dealt peripherally with the issue here. It is United States v. Montoya De Hernandez. In that case, the issue was the reasonableness of a lengthy

detention—the Court expressly did not deal with personal

searches—and they were to obtain a monitored bowel movement

when the officers had only ‘‘reasonable suspicion’’ and not probable

cause or a warrant for a search. That search was upheld. However,

the dissent in that case was prophetic in noting the problems that

will arise as a result. Justice Brennan made the following

comment—

I do not imagine that decent and law-abiding international travelers have yet

reached the point where they expect to be thrown into locked rooms and ordered

to excrete into wastebaskets; held incommunicado until they cooperate, or led away

in handcuffs to the nearest hospital for exposure to various medical procedures—

all on nothing more than reasonable suspicions of low-ranking enforcement agents.

The above described scenario might have seemed hysterical or

overstated when it was written, but it has come to pass with an

alarming frequency. One of the most readily and easy ways to correct these problems is using a procedure and dealing with the fact

that these women are held incommunicado. A magistrate’s authorization should be and, in fact, is legally required before such

searches take place but none ever occurs. I believe that this would

go a long way toward solving the problem.

Thank you.

[The prepared statement follows:]

Statement of Edward M. Fox, Esq., Ed Fox & Associates, Chicago, Illinois

I. INTRODUCTION

I am an attorney presently representing close to 90 African-American women who

have been subjected to pat downs, strip searches, visual cavity searches, and in

some cases physical cavity searches and x-rays by employees of the United States

Customs Service. I have talked to many other women whose cases I have not taken

for various reasons, such as because the case is too old, or a case involving an airport other than O’Hare airport in Chicago. In none of theses instances were drugs

found. In all the instances the reasons for the searches were minimal/pretextual, or

otherwise were simply non-existent. In all the cases the degradation of the women

was at a maximum.

In this written statement there are 3 issues that I intend to discuss. They include

how a large case consisting of numerous African American women was discovered

and commenced; (1) a generally described ordeal of the strip search process; (2) Customs purported justifications for undertaking their very intrusive searches; and (3)

the problems with the activities of Customs (including some statistical data).

A. The Origins Of This Case

In August of 1997, Sharon Anderson was searched upon coming home from a vacation in Jamaica. She was and is a schoolteacher with the Chicago Board of Education. She is middle aged. She subsequently came to me about what she had endured. I filed a case on her behalf in October of 1997.

The case I filed at that time did not contain allegations of racial discrimination,

nor did it contain many of the allegations that eventually found their way into subVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00048 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
45

sequent complaints. I did not have information at that time showing a racial or gender bias, and I certainly had no idea of the enormity of the problem. It was simply

an unlawful search case.

Subsequently, in about late March of 1998, Ms. Anderson had called me upon seeing a news report of another woman, Denise Pullian. Ms. Pullian described a remarkably similar scenario as that described by Ms. Anderson. (See below.)

Thereafter, my office called the news station, as did my client to see what information they had that might be useful. Thereafter, Ms. Anderson told others about

what she went through. I and apparently the news station started receiving many

telephone calls from only African-American women who also recounted startlingly

similar stories. Two of the women were travel agents who had known of tens of such

cases. Thus, the word of mouth coupled with additional news stories on the same

subject matter served to embolden many women who before had felt too alone,

scared and isolated to come forward.

It quickly became apparent that there was a racial component to the searches.

Only African-American women were calling. Additionally, many of them recounted

stories of seeing only other African-American women in the ‘‘secondary’’ area where

further questioning and searching are commenced. Resulting from this and further

news reports, I have now received telephone calls or visits from women in many different states, including Illinois, Florida, Texas, Pennsylvania, Maryland, California,

New Jersey, Ohio, Michigan, New York, Virginia, Georgia, and Puerto Rico. Most

of these women have come through an international airport terminal, and all have

described similar ordeals. The number of women I spoke to about this exceed 100.

They are predominately African-American.

B. The Scenario To Which The Women Are Subjected

As noted above, the typical search that these women have been made to endure

is remarkably similar. Generally, they are questioned by a ‘‘rover’’ who is a Customs

inspector who stands near the luggage area. The questioning has the feel of an inspector who is incredulous that the particular woman has the financial means to

travel. The answers are generally irrelevant to the decision to further search.

From the questioning stage, the women are made to go to a secondary area where

their baggage is searched and further questioning is done. At this stage, often, gift

bottles of just bought bottles of wine are opened and therefore the gift is destroyed.

Additionally, it is rare that anything suspicious is found in the luggage. That is,

there is no drug or drug paraphernalia found, no lubricants, large amounts of cash

or drugs that might be used to suppress bowel movements are found. Notwithstanding this, the women are then taken to a small, windowless room that contains

only a metal bench and sometimes a toilet that does not flush. In this room, Customs conducts pat down searches, that often are followed by strip searches and then

visual body cavity searches.

Pat down searches are typically conducted in an abusive manner. When being

‘‘patted down’’ the women are told to spread their hands, placing them on a wall

over the metal bench. They are further told to spread their legs. If they are not perceived to have spread their legs wide enough, they are yelled at, and sometimes

have their legs kicked or pushed farther apart. The ‘‘pat down’’ consists of Customs

inspectors pushing their fingers through the clothing or palpating the clothing over

the skin hard, sometimes causing pain. This is done all over the body, including the

breasts, and groin area. This is done regardless of whether the woman is wearing

skin-tight clothing and the absence of things under the clothes is apparent.

Generally, the Customs inspectors ask the women at this stage of the search if

they are menstruating. The women are then subjected to strip and visual cavity

searches whether they are menstruating or not. In no case, during the pat down

search was anything ever found which could then be used to justify a more intrusive

search.

The strip search then proceeds. In doing a strip search, the women have been subjected to everything from having hands inserted up under their clothes, to being

asked to taking off all their clothes and underwear. Some of the women are made

to remain naked in the room for a substantial length of time.

Most strip-searched women are subjected to a visual body cavity search. In such

a search, the women are asked to face the wall, bend over and they are then told

either to ‘‘grab your ankles and cough’’ and/or ‘‘to spread your cheeks.’’ Then the inspectors examine their vaginas and anuses. In some cases, the women were physically touched during the strip search and body cavity search. In some cases, fingers

were inserted into the body cavity of a woman. It is not infrequent that a woman

will be asked to retrieve her bloody tampon from her vagina to be inspected.

Additional outrageous facets to these examinations are two-fold. First, and most

appalling, the women are literally held incommunicado during the entire procedure.

46

This means not only can they not contact an attorney or other person by telephone,

they are not permitted to tell friends that are picking them up at the airport why

they are running late. This very Kafkaesque scenario lasts for as long as Customs

desires. Thus, if they take a woman to the hospital in handcuffs to be further

x-rayed and examined, as sometimes occurs, no telephone call is still permitted—

despite the great length of time that will lapse. The fear that these women thus

go through during these ordeals is very real. Secondly, a young low-ranking government official who often does not even obtain a supervisor’s approval is conducting

these searches.

C. Customs Reasoning For Doing the Searches

There is no dispute by Customs officials that they must have ‘‘reasonable suspicion’’ to undertake the searches described above. The reasons they give, however,

are stunningly thin and often pretextual.

A good example of Customs officials’ ‘‘suspicion’’ is found in the case of Denise

Pullian. She was the first to be profiled on the news. In a letter of complaint that

she wrote to Customs, Ms. Pullian described in vivid detail being made to undergo

a rude interrogation, followed by her luggage being examined, followed by an abusive pat down search, followed by a strip search, and followed by being made to pull

her bloody tampon from her vagina.

In a responsive letter, the Customs Service indicated that the only reason for the

search were some allegedly evasive answers to questions regarding her reasons for

travel.

In fact, nothing was found during any part of the search that should have given

rise to further searching. Customs acknowledged that there were no drugs, paraphernalia, dog alert, unusual amounts of currency, a lubricant or anything else of

interest found before subjecting Ms. Pullian to her ordeal. In their responsive letter

to Ms. Pullian, Customs indicated in its responsive letter that it was most concerned

with the fact that Ms. Pullian said she was traveling on business, and that they

undertook the search because they questioned whether her ‘‘business trip was legitimate.’’ In doing so, Customs indicated that Ms. Pullian ‘‘volunteered no corroborating documentation supporting [her] reason for travel.’’

In fact, Ms. Pullian responded to all the questions regarding her business (she designs Youth At-Risk programs), and had various business documents in her luggage,

which was clearly seen. Interestingly, as noted by Customs in its letter, Ms. Pullian

suggested and accused the investigators during the search of doing this because she

was black.

This accusation has merit as seen by Customs own documents. One of the overriding themes of the searches is that, apparently, Customs does not believe that

black women can afford to travel—unless they are drug couriers.

It is often noted by Customs in its incident logs that a search is recommended

merely because the person has traveled frequently—without any evidence of wrongdoing. For example, in the responsive letter to Ms. Pullian, Customs wrote that: ‘‘it

was quickly determined that this was your third trip out of the United States in

the last three months.’’ The implication is clear: that African-American women

should not be able to afford to travel often.

It is disturbing and absolutely true that often, Customs recommends searches for

these African-American women based solely on the amount of travel they do. This

is so because the logs indicate a recommendation to search before the particular

woman will have returned from her trip, and thus, without knowing the reason for

travel, her occupation, or indeed, anything about the woman. Note the following examples taken from Customs’ logs:

1. REMARKS—Date 020298

CHICAGO PAU [Passenger alert unit] LOOKOUT. INS: CODE TO REFER

TO USCS. FREQ TRVLR FROM JM THRU MIA: 6/97, 8/97, 11/97. SUGGEST

PROGRESSIVE NARC/$$$ EXAM. PLS SHOW OCCUPATION, REASON FOR

TRVL, & OTHER PERTINENT IINFO IN REMARKS. THANKS.

2. REMARKS—DATE 102895

ORD-PAU LOOKOUT. PAX HAS 3 TRIPS WITHIN THE PAST 8 MONTHS.

NO TRAVEL PRIOR TO THAT TIME. PAX HAS AIR ONLY PASSAGE TO JAMAICA. PAX WAS A NO SHOW FOR RETURN FLIGHT ON 102895. A SECONDARY EXAM IS RECOMMENDED.

3. REMARKS—DATE 102797

CHICAGO PAU L.O. CODE APPROPRIATELY AND REFER TO USCS SECONDARY 100% EXAM PLS. USCS: VERY FREQU TRAV TO MBJ; CLAIMS

TO BE A TRVL AGNT/ANTIQ DEALER, BUT SHE HAS NO IATA# (SEE 6/

4IOIL); PLS REPORT NAME & EXACT ADRESS OF ‘‘ANTIQUE SHOP’’.

47

In fact, one woman, Patricia Appleton was searched so frequently that a Customs

inspector wrote in the log, after one such strip search, as follows: ‘‘PLS. STOP THE

MADNESS.’’ The madness did not, however, stop there. Ms. Appleton, a travel

agent, has continued to be searched.

Finally, and very briefly, Customs’ own statistics reveal a highly disproportionate

amount of African-American women being searched at O’Hare airport. In 1997, Customs’ statistics showed that of all strip searches undertaken, broken down by race

and gender, black women were searched 46 percent of the time. By way of comparison, white females were searched 23 percent of the time and white males were

searched 11 percent of the time. When this is coupled with the fact that the percent

of negative searches of black women was far greater than any other group (more

than 80 percent) and the fact that black women are a much smaller percent of the

traveling population than whites, it is evident that racial profiling, and thus, discrimination occurs regularly and frequently.

II. CONCLUSION

There is a Supreme Court case that dealt peripherally with the issue at hand

here. United States v. Montoya De Hernandez, 473 U.S. 531 (1985). In that case,

the issue was the reasonableness of a lengthy detention (the Court expressly did not

deal with personal searches) to obtain a monitored bowel movement when the officers had only ‘‘reasonable suspicion’’ and not probable cause or a warrant for a

search. That search was upheld. However, the dissent in that case was prophetic

in noting the problems that will arise as a result. Justice Brennan made the following comment:

I do not imagine that decent and law-abiding international travelers have yet

reached the point where they ‘expect’ to be thrown into locked rooms and ordered to excrete into wastebaskets, held incommunicado until they cooperate,

or led away in handcuffs to the nearest hospital for exposure to various medical

procedures—all on nothing more than the ‘reasonable’ suspicions of low-ranking

enforcement agents.

The above describe scenario might have seemed hysterical or overstated when

written—but it has come to pass with an alarming frequency.

One of the most readily corrected problems with the procedure concerns the fact

that these women are held incommunicado. A magistrate’s authorization should be,

and in fact, is legally required before such searches take place, but none ever occurs.

Thus, in the same Supreme Court opinion referenced above, Justice Brennan indicated as follows:

Accordingly, in this country at least, the importance of informed, detached

and deliberate [judicial] determinations of the issue whether or not to invade

another’s body in search of evidence of guilt is indisputable and great.

Respectfully submitted,

f EDWARD M. FOX

Chairman HOUGHTON. Thank you very much.

Ms. Johnson.

STATEMENT OF SHERI LYNN JOHNSON, PROFESSOR OF LAW,

CORNELL UNIVERSITY, ITHACA, NEW YORK, AND CO-DIRECTOR, CORNELL DEATH PENALTY PROJECT

Ms. JOHNSON. Good morning. I am a professor at Cornell Law

School with expertise in racial profiling. Because racial profiling occurs in other settings and because deterring racial profiling is as

important as unearthing it, the racial profiling practices of other

law enforcement agencies are relevant as are the underlying dynamics that support racial profiling.

The individual experiences recounted this morning are virtually

impossible to explain on any basis other than race. Moreover, the

statistics released by Customs, itself, provides strong evidence that

these experiences are not idiosyncratic but are part of a patter.

48

Nevertheless, Commissioner Kelly has repeatedly stated that Customs does not have a policy that targets racial groups. It is clear

from the experience of other law enforcement agencies, however,

that racial profiling frequently occurs in the absence of official permission.

Today, the most powerful cause of racial profiling is not policy

but racial bias. Too often when we think of racial bias we think of

conscious animosity toward persons of another race. While such animosity certainly exists, racial stereotyping, sometimes even unconscious stereotyping, is far more prevalent. It is no accident that the

racial groups that Customs disproportionately subjects to searches

are Black and Latino; both are stereotypically associated with

criminal propensity in our culture.

When searches result from such stereotyping, at least three selfperpetuating mechanisms are generated. First, when drugs are discovered, biases are reinforced. As psychologists have observed,

stereotype-consistent information is remembered far more readily

than is information inconsistent with the stereotype; that is, failed

searches.

Second, as agents treat travelers in extremely offensive ways and

then discovered them to be innocent of all wrongdoing, those agents

are likely to dehumanize such travelers in order to rationalize their

own actions. If agents were to see these Black and Latino women

as basically like themselves or their wives or their daughters, it

would be hard to justify the humiliation they had inflicted. So, the

agents focus on the women’s race in order to create psychological

distance, thereby simultaneously increasing the racial bias that led

to the initial search decisions. Looked at from this perspective, the

agents’ incredibly callous response to these women suffering and to

their complaints are predictable. The callousness flows from, justifies, and then perpetuates racial stereotyping.

Third, racial stereotyping is perpetuated by modeling. As new

agents observe the practices of more senior employees, they learn

bias on the job along with necessary skills. Although the racial bias

and the mechanisms that reinforce it are the most important

sources of racial profiling, in the Customs setting, there are at least

two other factors likely to bear some causal responsibility. First is

the issue of relative costs. If agents perceive that racial minorities

are less likely to lodge complaints, it may seem less costly in the

political sense to select minorities for enhanced scrutiny rather to

engage in racially-blind screening of travelers. This is something

we can learn from the New Jersey Turnpike litigation where police

officers have now admitted that they selected African-American

motorists for traffic stops in part because they wished to decrease

the number of complaints. One of the purposes of this hearing, of

course, is to increase the perceived costs of searching racial minorities to make clear that outrages, such as those described today, are

not made more acceptable by virtue of the victim’s race and, indeed, that targeting by race renders the intrusions less rather than

more tolerable.

Finally, racial profiling occurs more often because there is no

sanction against it. In the Customs context, internal rules do not

appear to prohibit consideration of racial factors. Moreover, the

Supreme Court has been extraordinarily loathe to interfere with

49

border searches. Not only is the standard for requisite suspicion

needed to justify body searches much lower at the border, but the

Supreme Court has refused to prohibit the use of ethnic criteria by

the INS, thus creating at least a constitutional voice if not lending

tacit approval to the use of racial criteria.

With these powerful psychological and institutional forces supporting discrimination, it is insufficient for the Commissioner to

declare that Customs has no policy of targeting minorities. Eradication of racial profiling requires explicit prohibitions, new training, a better incentive system, and very careful external monitoring.

Again, observations of racial profiling in other law enforcement

agencies are instructive. When New Jersey officers were ordered to

keep records to ascertain the extent of race-based detention, at

least some of the officers falsified racial information in order to

conceal their continuing discrimination. Similarly, if one examines

either the INS motorist stop case or the DEA airport stop cases,

it is clear that both INS and DEA have used ludicrous pretext to

hide heavy reliance on race.

As with all entrenched practices, resistance to change must be

expected. Good faith requires, first, candid acknowledgment of past

wrongs and then specific plans for reform. In their absence, corrective legislative action is necessary.

[The prepared statement follows:]

Statement of Sheri Lynn Johnson, Professor of Law, Cornell University,

Ithaca, New York, and Co-Director, Cornell Death Penalty Project

Good morning. I am a Professor of Law at Cornell University, and Co-Director of

the Cornell Death Penalty Project. I am here today not as an expert on Customs,

but as an expert on racial issues in the criminal justice system, which I frequently

litigate in capital cases, and concerning which I have published numerous law review articles. More particularly, I have expertise in racial profiling, first publishing

an article on the improper uses of race in search and seizure decisions sixteen years

ago in the Yale Law Journal. Because racial profiling is a phenomenon that extends

beyond the agency here under review, and because I understand that this subcommittee is interested in deterring racial profiling as well as unearthing it, I believe that the practice of racial profiling by other law enforcement agencies is relevant, as are the underlying dynamics that support racial profiling.

The individual experiences recounted this morning are virtually impossible to explain on any basis other than race. Moreover, the statistics released by Customs

provide strong evidence that these experiences are not idiosyncratic: Last year,

Black and Latino travelers experienced 43 percent of the body searches conducted

by Customs, and if we focus on the more intrusive strip searches, it appears that

Black women travelers face approximately eight times the risk of a strip search by

Customs agents than white males do. Commissioner Kelly has repeatedly stated

that Customs does not have a policy that targets racial groups. Understanding the

informal causes of racial profiling, however, can reconcile the Commissioner’s denials of any formal targeting policy with the reality of race discrimination.

It is clear from the experience of other law enforcement agencies that racial

profiling frequently occurs in the absence of official permission. Probably the most

powerful cause of racial profiling is racial bias. Too often when we think of racial

bias, we think of conscious animosity towards persons of another race. While such

animosity certainly exists, and may influence some Customs officials, racial stereotyping—sometimes even unconscious stereotyping—is far more prevalent. It is not

an accident that the racial groups that are disproportionately targeted for searches

are Black and Latino; in our culture, both are stereotypically associated with criminal propensity.

When searches result from such stereotyping, at least three self-perpetuating

mechanisms are generated. First, when drugs are discovered, biases are reinforced;

as psychologists have observed, stereotype-consistent information is more readily remembered than is information inconsistent with the stereotype, so failed searches

are unlikely to cause the agent to question the stereotype. Second, as agents treat

50

travelers in the extremely offensive ways described here today, and then subsequently discover them to be innocent of all wrongdoing, those agents are likely to

dehumanize such travelers in order to rationalize their own actions; if agents were

to see these Black and Latino women as basically like themselves (or their wives

or daughters), it would be hard to justify the humiliation they had inflicted upon

these innocent individuals. So the agents focus on the women’s race in order to create psychological distance, thereby simultaneously increasing the racial bias that led

to the initial search decisions. Looked at from this perspective, the agents’ incredibly

callous responses to these women’s suffering and to their complaints are predictable;

the callousness flows from, justifies, and perpetuates racial stereotyping. Third, racial stereotyping is perpetuated by modeling. As new agents observe the practices

of more senior employees, they learn bias on the job, along with necessary skills.

Racial profiling appears to be part of the expertise they must acquire, and in the

process of participating in racial profiling, new agents reinforce any biases they previously had.

Although racial bias, and the mechanisms that reinforce it are the most important

sources of racial profiling, in the Customs setting, there are at least two other factors likely to bear some causal responsibility. First is the issue of relative costs: If

agents perceive that racial minorities are less likely to lodge complaints, it may

seem less costly—in the political sense—to select minorities for enhanced scrutiny

rather than to engage in racially blind screening of travelers. This is one of the lessons of the New Jersey Turnpike litigation, where some police officers have admitted that they selected African American motorists for traffic stops in part because

they wished to decrease complaints. If we consider the horrors described by Ms.

Denson, it is easy to imagine that officials would hesitate to impose such extreme

treatment upon someone who might turn out to be powerful. One of the purposes

of this hearing, of course, is to increase the perceived costs of searching racial minorities, to make clear that perpetrating outrages such as those described today is

not made acceptable by virtue of the victim’s race, and indeed, that targeting by

race renders the intrusions less rather than more acceptable.

Finally, it should be observed that racial profiling will occur more often where

there is no sanction for engaging in it. In the Customs context, internal rules do

not appear to prohibit consideration of racial factors. Moreover, the Supreme Court

has been extraordinarily loathe to interfere with border searches. Not only is the

standard for the requisite suspicion needed to justify body searches much lower at

the border, but the Supreme Court has refused to prohibit the use of ethnic criteria

by the INS, thus creating at least a constitutional void, if not lending tacit approval

to reliance on racial criteria.

With these powerful psychological and institutional forces supporting the existing

practice, it is insufficient for the Commissioner to declare that Customs has no policy of targeting racial minorities. Eradication of racial profiling requires commitment, explicit prohibitions, new training, and careful monitoring. Again, observations of racial profiling in other law enforcement agencies are instructive. When

New Jersey officers were ordered to keep records to ascertain the extent of racebased detentions, at least some of the officers falsified racial information in order

to conceal their continuing discrimination. Similarly, if one examines either the INS

motorist stop cases or the DEA airport stop cases, it is clear that both INS and DEA

agents have used ludicrous pretexts to hide heavy reliance upon race. As with all

entrenched practices, resistance to change, and in some quarters, even intransigence, is to be expected. At this point, good faith requires candid acknowledgment

of past wrongs and specific plans for reform; in their absence, corrective legislative

action would seem to be necessary.

Chairman H

Mr. Tobias.

OUGHTON. Thank you very much, Ms. Johnson.

f

STATEMENT OF ROBERT M. TOBIAS, NATIONAL PRESIDENT,

NATIONAL TREASURY EMPLOYEES UNION

Mr. TOBIAS. Thank you very much, Chairman Houghton and

Ranking Member Coyne and the Members of this Subcommittee. I

am very pleased to be here and testify this morning.

I would like to start by saying that—

51

Chairman HOUGHTON. Pull the mike up just a little bit further.

Thank you very much.

Mr. TOBIAS. I would like to start, this morning, by saying that

on behalf of the employees of the Customs Service represented by

NTEU, I would certainly like to apologize to those here today who

were innocent but subject to personal searches. Clearly, these are

extremely humiliating experiences for those who are subjected to

these kinds of searches, and, clearly, the rights—

Chairman HOUGHTON. Mr. Tobias, can I interrupt again? You

have got to pull that mike very, very close to you. Thank you.

Mr. TOBIAS. Clearly, the right people are not chosen every time,

and I pledge my union’s support to work with Commissioner Kelly

and Members of this Committee to establish procedures and to provide training to Customs inspectors so that their targeting is more

accurate and search procedures are clear and that the inspectors

and the other Customs employees are well-trained in these policies.

Customs employees condemn the use of discriminatory factors as

a basis for selecting passengers for secondary inspection or more

intrusive search techniques, but it is also important to keep in

mind and to remind ourselves that this is the time of the year

when we celebrate high school graduations in towns and cities

throughout the United States. Yet during this time of celebration,

there are alarming statistics that show that those high school students who graduated in 1998, the percentage who used illegal

drugs in the 12 months prior to graduation increased dramatically

since 1992. More teenagers are experimenting with drugs, which

means that drugs are more available to them. Presently, the greatest threat to our Nation’s youth from abroad is the threat of illegal

and dangerous drugs coming into the United States.

I agree with the Members of this Committee who have repeatedly stated that we have to stop drugs from coming across our borders, and Customs inspectors present the first line of defense to the

illegal importation of drugs and contraband across our borders.

They are on the frontlines at sea, land, and airports. It is a very

difficult, it is a very dangerous job. They have been assaulted by

travelers, shot, dragged to their death by cars running ports,

threatened and accosted. As recently as last week, a Customs inspector in Puerto Rico was shot on his way home from duty, because he was recognized as a Customs enforcement official. Every

day, these men and women must resist smugglers’ attempts to corrupt them through bribery and threats.

They meet hundreds and often thousands of travelers every day.

Their job is to make split-second decisions about people, while

keeping in mind the danger that is often presented. They are required to be courteous but at all times on guard and wary of the

traveler who may be dangerous to the Customs inspector or other

travelers.

The job requires stamina. Most work a minimum of three different shifts without start and stop times. They have very little

control over their schedules, and they are on call of management

for orders to work overtime, and the job is seriously undervalued.

At the very height of a career and even after 25 years of dedication

to the Customs Service, the average inspector will make a base salary of about $40,000 per year. Unlike their counterparts in DEA,

52

FBI, and Border Patrol, the Customs inspectors do not have law

enforcement status, thus they are denied the benefit of a 20-year

retirement that they deserve.

The amount of work done is ever-increasing. In fiscal year 1999,

Customs estimates it will process over 470 million land, sea, and

air passengers. This number is up by 10 million from 1998 and up

23 million from 1997. The Customs Service is being asked to do

more work, process more cargo and more passengers with fewer inspectors and outdated technology. A drug interdiction effort for the

21st century depends on 21st century equipment and increased

staffing levels to meet the increases in the volume of travelers. The

impact of not enough people or technology means that the available

data is not analyzed which would increase the accuracy of targeting; reduce unnecessary delays for passengers, and decrease the

danger for inspectors.

The shear volume of passengers at land, air, and sea ports requires the Customs inspector to be cautious, scrutinizing, and properly trained to select the potential smugglers or otherwise dangerous people.

Now, there is no typical drug smuggler or a typical way to smuggle drugs. Heroin has been strapped to human couriers, sewn into

the lining of a traveler’s jacket, compressed into the soles of travelers’ hollowed-out tennis shoes, poured into condoms and ingested,

and hidden in luggage or other type of belongings. Smugglers and

distributors are teenagers, college graduates, middle-aged

businesspeople, senior citizens, and young children. They are single, married, traveling with babies, in tour groups or alone. Customs inspectors must be attentive in their efforts to detect who is

carrying drugs and how it is being done. Of course, drugs are not

in plain view. Some smugglers have hidden drugs so well, they may

even evade body scanners deployed in the airport terminal.

To narrow the field between the innocent traveler and the drug

smuggler, inspectors use criteria developed by the Customs Service

through the analysis of historical data. Such indicators include the

traveler’s origination of flight, including whether the traveler’s

flight included a stopover in a source country, the duration of stay,

the method of payment for the ticket, the traveler’s employment

history, and many others. Most indicators are gleaned from a quick

interview with the arriving passenger. The interview process

should narrow the search to those who may be attempting to smuggle drugs. Certain passengers will display behaviors, such as avoiding eye contact, seeming nervous, or failing to answer simple questions. In these situations, the trained inspector will be on alert that

the passenger may be carrying illegal contraband.

It is important that these criteria be constantly updated based on

new intelligence and the constantly changing tactics of drug smugglers. In addition, it is important to ensure that whatever criteria

are developed and applied, they are not done so in a discriminatory

manner. The current criteria used by the Customs Service to identify a traveler for a more detailed interrogation or a personal

search are being reviewed by a Personal Search Commission,

chaired by Under Secretary Constance Newman. We look forward

to the recommendations of the Commission and to working with

53

Commissioner Kelly to ensure that search policies, if necessary, are

changed to safeguard against discrimination.

Just as Customs inspectors must be diligent in their efforts to

protect our borders from illegal trade or drug activity, so, too, they

must protect the constitutional rights of all travelers. Commissioner Kelly has proposed, and NTEU agrees, that there must be

regular training opportunities for Customs enforcement personnel.

It is not enough to have one formal training opportunity at the beginning of a career. In the constantly changing environment faced

by Customs enforcement personnel, they must have the opportunity to receive new information, learn more techniques, and understand the changing laws and regulations. This type of training

will allow better targeting of travelers. We will work to ensure that

the Customs employees get the training necessary so that the policies to be followed are understood by all.

The U.S. Customs Service must facilitate the flow of legitimate

trade and travel, while interdicting the illegal contraband and

drugs, although this is a seemingly impossible mission—more and

more people are traveling; more and more cargo is flowing across

our borders ever year, and the agency continues to seize more illegal narcotics than all other Federal agencies combined.

With more personnel and technology and with increased focus on

training and employee education, we can ensure better targeting

and consistent application of the agency’s search policies and procedures which will enable the Customs Service to continue to perform

its critical enforcement mission while safeguarding the rights of the

traveling public.

I would like to offer NTEU’s assistance and cooperation to this

Committee as it reviews the difficult issues before it. Thank you for

this opportunity, Mr. Chairman.

[The prepared statement follows:]

Statement of Robert M. Tobias, National President, National Treasury

Employees Union

Chairman Houghton, Ranking Member Coyne and Members of the Subcommittee,

my name is Robert M. Tobias, and I am the National President of the National

Treasury Employees Union (NTEU). NTEU represents approximately 155,000 federal employees, about 13,000 of whom work for the United States Customs Service.

The majority of Customs employees represented by NTEU are inspectional personnel working at ports of entry throughout the United States and in Canada. I

would like to thank the Subcommittee for this opportunity to present our Union’s

views on the very important issue of passenger inspection operations at the U.S.

Customs Service.

Today, I would like to give you a sense of what Customs officers face each day

that they report for duty. And, on behalf of all inspectional personnel represented

by NTEU, I would like to state unequivocally that Customs Service employees condemn the use of discriminatory factors as a basis for selecting passengers for secondary inspection or more intrusive search techniques.

THE CUSTOMS MISSION

This is usually the time of year when we celebrate high school graduations in

towns and cities throughout the United States. Yet, during this time of celebration,

we must not forget the alarming statistics that show that of those high school students who graduated in 1998, the percentage of them who used illegal drugs in the

twelve months prior to graduation increased dramatically since 1992. Marijuana use

by graduating seniors in the twelve months prior to graduation increased by 80%

since 1992. Heroin use increased by 100% and cocaine use by 80%. More teenagers

are experimenting with drugs which means that drugs are more available to them.

54

Presently, the greatest threat to our nation’s youth from abroad is the threat of illegal and dangerous drugs coming into the United States.

We must stop drugs from coming across our borders. We must make the eradication of drug use in the United States a number one priority in Congress. These

are not just my sentiments, these are quotes from members of this committee on

the importance of the War on Drugs.

INSPECTIONAL PERSONNEL

Customs inspectors present the first line of defense to the illegal importation of

drugs and contraband across our borders. They are on the front lines at sea, land

and air ports. They have been assaulted by travelers, shot at, dragged to their death

by cars running ports, threatened and accosted. Very recently, a Customs inspector

in Puerto Rico was shot, on his way home from duty, because he was recognized

as a Customs enforcement official. Every day these men and women must resist

smugglers attempts to corrupt them through bribery and threats.

For as many travelers as there are crossing our borders or landing in our international airport terminals, there are reasons they have made the trip. The job of

the Customs inspector is to safeguard our borders from those who want to violate

our trade and drug laws while facilitating the travel of all innocent persons. There

is a tremendous amount of pressure on the Customs inspectors who greet arriving

travelers from all over the world. Their job is demanding and dangerous. Customs

inspectors carry weapons and undergo mandatory firearms training. They are

taught to make arrests. They learn defensive tactics for protecting themselves from

dangerous criminals with whom they may come face to face. They must be courteous, but at all times on guard and wary of the traveler who may be dangerous

to the Customs inspector or other travelers.

Not many people recognize the concessions inspectors make for the Customs Service. Cargo shipments and travelers cross our borders at all times of the day and

night, and Customs inspectors must be there to process them. Most work a minimum of three different shifts with odd start and stop times. They have very little

control over their schedules, and they are at the call of management for orders to

work overtime.

At the very height of a career, and even after twenty-five years of dedication to

the Customs Service, the average inspector will make a base salary of about $40,000

per year. Unlike their counterparts in the DEA, FBI and Border Patrol, the Customs inspectors do not have law enforcement status, thus they are denied the benefit of a twenty-year retirement that they deserve.

INCREASED TRAFFIC AND TRAVEL

In FY 1999, Customs estimates it will process over 470 million land, sea and air

passengers. This number is up by about 10 million from 1998, and up 23 million

from 1997. Currently, staffing levels at almost all ports around the country are at

minimum levels. Every year, the Customs Service is being asked to do more work,

process more cargo and more passengers with fewer inspectors and outdated technology. A drug interdiction effort for the 21st century depends on 21st century

equipment and increased staffing levels to meet the increases in the volume of travelers.

PROCESSING TRAVELERS

Whether inspectors are working at land, sea or air ports, most of the people they

encounter will be unknown to them. In the case of some commercial vessels and airplanes, Customs inspectors may receive advance information about arriving passengers. In airports, this information may be analyzed by the Customs Passenger

Analysis Unit (PAU) and the inspectors on duty may have some advance intelligence on the arriving passengers. But, too often this information is not forthcoming

from the commercial airlines, or there are too few PAU employees to properly analyze the data and provide it to the inspectors. Customs does not have enough staffing to field the necessary number of ‘‘rovers’’ who walk among the passengers and

watch for odd behaviors and actions. Staffing shortages have also resulted in decreased staffing at ‘‘choke points,’’ where passengers first arrive in an airport Customs area. The Agency simply does not have enough staffing to cover all bases for

passenger operations. This situation leads to unnecessary delays for travelers and

increased dangers for inspectors.

In addition to staffing shortages, there is a profound lack of technology and information gathering equipment to adequately process travelers. We task these inspecVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
55

tors with greeting the traveling public, quickly learning more about them and making split second decisions that can either facilitate or delay their travel.

In most cases, a passenger will be cleared immediately after retrieving his or her

luggage. For some, a Customs inspector may ask several questions. For fewer, the

inspector will direct the traveler to the secondary area for a personal search. Currently, the minimal staffing levels at most ports of entry allow for only 2% of the

cargo and passengers to be reviewed in the secondary area. The sheer volume of

passengers at land, air and sea ports requires a Customs inspector to be cautious,

scrutinizing and properly trained to select potential smugglers or otherwise dangerous people.

HUMAN DRUG COURIERS

There is no typical drug smuggler or a typical way to smuggle drugs. Heroin has

been strapped to human couriers, sewn into the lining of a traveler’s jacket, compressed into the soles of a traveler’s hollowed-out tennis shoes, poured into condoms

and ingested, and hidden in luggage or any other type of belonging. Smugglers and

distributers are teenagers, college graduates, middle-aged business people, senior

citizens and young children. They are single, married, traveling with babies, in a

tour group or alone. Customs inspectors must be attentive in their efforts to detect

who is carrying drugs and how. Of course, drugs are not in plain view. Some smugglers have hidden drugs so well that they may evade body-scanners deployed in the

airport terminal.

PERSONAL SEARCH

The most effective method available to Customs inspectors today, to find concealed drugs on a human courier, is the personal search. In 1998, Customs seized

over two and one half tons of illegal narcotics on and in the bodies of drug smugglers. Any invasive physical contact is unpleasant for a traveler, and while less intrusive methods of searching the bodies of suspected smugglers are available, these

body scan machines are extremely expensive and have been deployed in Customs

areas in just two major airports so far.

CRITERIA TO NARROW THE TARGET

To narrow the field between the innocent traveler and the drug smuggler, inspectors use criteria developed by the Customs Service through the analysis of historical

data. Such indicators include the traveler’s origination of flight, including whether

the traveler’s flight included a stop-over in a source country, the duration of stay,

the method of payment for the ticket, the traveler’s employment history and many

others. Most indicators are gleaned from a quick interview with an arriving passenger. The interview process should narrow a search to those who may be attempting to smuggle drugs. Certain passengers will display behaviors such as avoiding

eye contact, seeming nervous or failing to answer simple questions. In these situations, a trained inspector will be on alert that the passenger may be carrying illegal

contraband.

The inspectors are required to apply criteria developed by the Customs Service.

It is important that this criteria be constantly updated based on new intelligence

and the constantly changing tactics of drug smugglers. In addition, it is important

to ensure that whatever criteria are developed and applied, they are not done so

in a discriminatory manner. The current criteria used by the Customs Service to

identify a traveler for a more detailed interrogation or a personal search are being

reviewed by a Personal Search Commission chaired by Under Secretary Constance

Newman. We look forward to the recommendations of the Commission and to working with Commissioner Kelly to ensure that search policies, if necessary, are

changed to safeguard against discrimination.

Just as Customs inspectors must be diligent in their efforts to protect our borders

from illegal trade or drug activity, so too, they must protect the Constitutional

rights of all travelers. Commissioner Kelly has proposed and NTEU agrees that

there must be regular training opportunities for Customs enforcement personnel. It

is not enough to have one formal training opportunity at the beginning of a career.

In the constantly changing environment faced by Customs enforcement personnel,

they must have the opportunity to receive new information, learn more techniques,

and understand the changing laws and regulations. This type of training will allow

better targeting of travelers. We will work to ensure that Customs employees get

the training necessary so that the policies to be followed are understood by all.

56

PERSONAL SEARCH POLICIES AND PROCEDURES

Whenever a passenger is referred to the secondary area for a personal search, an

inspector must follow the Customs Service’s nation-wide policies and procedures. Inspectors at every port of entry around the country are taught these procedures when

they receive their initial training at the Federal Law Enforcement Training Center

(FLETC). But, these policies must be reiterated and relearned so that inspectors

who may not perform personal searches regularly are aware of every nuance,

change in policy or added procedure. Currently, Customs does not provide standardized update training to continue the education process and alert inspectors to new

patterns and methods of smuggling. There is no follow up training after inspectors

have been working for several years, where they can comment on the policies and

procedures, and Customs can reinforce the law and policies on personal searches.

There must be regular, formal training opportunities for Customs enforcement personnel.

The United States Customs Service must facilitate the flow of legitimate trade

and travel while interdicting illegal contraband and drugs. Although this is a seemingly impossible mission, more and more people are traveling, more and more cargo

is flowing across our borders every year, and the Agency continues to seize more

illegal narcotics than all other federal agencies combined. With more personnel and

technology and with increased focus on training and employee education we can ensure better targeting and consistent application of the Agency’s search policies and

procedures, which will enable the Customs Service to continue to perform its critical

enforcement mission while safeguarding the rights of the traveling public.

Shortly after the Personal Search Commission was formed, I sent the attached letter to Under Secretary Newman asking to provide the views of front line Customs

personnel to the Commission and offering NTEU’s assistance and cooperation. I

would also like to offer NTEU’s assistance and cooperation to this Committee as it

reviews the difficult issues before it.

Thank you for the opportunity to be here today on behalf of the Customs Service

employees to discuss these very important issues.

T

fHE NATIONAL TREASURY EMPLOYEES UNION

Washington, DC, May 6, 1999.

The Honorable Constance Berry Newman

Under Secretary

Smithsonian Institution

Washington, D.C.

Dear Under Secretary Newman:

I have recently learned that U.S. Customs Service Commissioner Raymond Kelly

has appointed you to chair the Independent Personal Search Review Commission

which will review the procedures and policies of the U.S. Customs Service regarding

passenger searches. I write to request an opportunity to provide the Commission

with the views of Customs inspectors who perform their duties every day at our

land, sea and air ports throughout the country.

Customs inspectors experience first hand the rigors of inspectional work and they

have keen insight into the constantly changing environments at our ports of entry.

Their views will be valuable to your Commission as you conduct your review.

Thank you for considering my request to appear before the Commission. Please

feel free to contact me if you have any questions. I look forward to your response.

Sincerely,

ROBERT M. TOBIAS

f National President

Chairman HOUGHTON. Thank you very much, Mr. Tobias.

We are going to continue here for about 5 minutes, and then we

are going to have to vote. We will interrupt the hearing, and then

we will come right back.

Mr. Coyne.

Mr. COYNE. Thank you, Mr. Chairman.

57

Mr. Tobias, have any of your members of the union ever complained about being instructed to concentrate on minorities when

making searches?

Mr. TOBIAS. Well, your question assumes, Mr. Coyne, that they

have been instructed to focus on minorities, and I am not aware

that anyone has been instructed to focus on minorities.

Mr. COYNE. So, none of them have ever complained to you that

they have been instructed to do that?

Mr. TOBIAS. No.

Mr. COYNE. OK. Is there any racial profiling at Customs now, to

the best of your knowledge?

Mr. TOBIAS. To the best of my knowledge, the answer is no.

Mr. COYNE. Has there ever been, to your knowledge?

Mr. TOBIAS. To my knowledge, the answer is no.

Mr. COYNE. Have Customs employees ever been disciplined for

selecting passengers for personal searches based on race or other

illegal factors?

Mr. TOBIAS. You know, I don’t know the answer to that question,

Mr. Coyne. What I can say is that no person has come to the union

to be represented for that kind of a disciplinary action, but it could

have happened, and we just wouldn’t be aware of it. So, to the extent I know, the answer is no.

Mr. COYNE. If more funds were available to train Customs inspectors on appropriately identifying and searching passengers,

what specific skills would need to be improved, in your judgment?

Mr. TOBIAS. Well, I think that—one of the problems, I think, that

the Customs Service faces, like all law enforcement agencies, is

patterned behavior. If you fall into a pattern of behavior without

an opportunity to say, ‘‘Well, I have been doing it this way, because

it has yielded results,’’ and there is not an opportunity to step back

and say, ‘‘OK, this is the way I have been doing it, but maybe there

is a different way. Maybe there is information from other agencies

that are doing it differently.’’

Right now, the only training a Customs—formal training a Customs inspector gets is his initial training; that is not enough. In

order to be a professional law enforcement agency, people have to

be constantly challenged with new information, new opportunities,

new strategies, new techniques. That doesn’t happen in the Customs Service.

Mr. COYNE. Could you briefly describe what that initial training

is?

Mr. TOBIAS. It is several weeks of formal training in the Law Enforcement Officer Training School in Georgia.

Mr. COYNE. Thank you.

Chairman HOUGHTON. Mr. Portman.

Mr. PORTMAN. Mr. Chairman, I will be brief with the hope that

we can get back down to the other side of panel.

I was going to ask about training also. I am pleased to hear, Mr.

Tobias, about the Newman Commission. I wonder if you could tell

us when that is expected to report?

Mr. TOBIAS. Soon. I don’t have a date.

Mr. PORTMAN. In your testimony, you attached a letter that you

had sent to Under Secretary Newman hoping that input from CusVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
58

toms people on the line in the field would be included in their deliberations. Has that been done?

Mr. TOBIAS. It has not happened yet.

Mr. PORTMAN. I would hope that that would happen and that we

can get—it sounds like there is an effort being undertaken to have

an independent review of personal searches, generally, through this

Commission. I think that would be very helpful to the Subcommittee.

Mr. TOBIAS. I agree.

Mr. PORTMAN. Let me just quickly ask, if I could, some of the

early witnesses who spoke—and, again, I appreciate your willingness to come today, Ms. Buritica, particularly, and Ms. Denson,

and for your willingness to talk publicly on the record about a very

difficult personal experience you had, and our hearts go out to you,

because it sounds like it was indeed a very disturbing sequence of

events and many hours you had to go through.

I would just ask you a question following on the questions that

I asked the Commissioner earlier about less intrusive means. I

know that some of these less intrusive means, such as a body scan

where you are able to keep your clothing on, and you go through

a scan that essentially tells you whether there is something hidden

underneath your clothes. As compared to a strip search, for instance, it would be an alternative to that, whether that would have

been something that you would have found to be as troubling—

would you have had any trouble, any problem going through that

kind of a body scan? Ms. Buritica. Do you understand my question?

Ms. BURITICA. I am sorry; I didn’t understand your question.

Mr. PORTMAN. There is new technology being developed, and it

is employed, I understand, at some airports already where instead

of having a strip search, people who are identified, in whatever

means they are identified, are simply asked to go through a piece

of equipment where you can keep your clothes and have—you

talked particularly, Ms. Buritica, about your humiliation you felt

through that strip search, and the alternative would be to go

through a scan that would be able to determine, not internal but

external, drugs or anything else that might be hidden. Would that

have been something that you would have had a problem going

through had you been asked to do that?

Ms. BURITICA. I think it would make a difference. I think it

would make a difference rather than have someone take off their

clothes against their will. I think it would make a difference.

Mr. PORTMAN. Ms. Denson, do you have any thoughts on that?

Ms. DENSON. Obviously, in my case, I would have been thrilled

to just walk through a scanner versus being treated the way I was

treated.

Mr. PORTMAN. Well, I think we have to—obviously, that would

not, as I understand it, be a replacement for everything you had

to go through from a Customs perspective, but at least a strip

search could be avoided through that kind of technology, and perhaps we can look more into these kinds of questions after we get

back from our votes.

And, again, I thank you all for being here, and thanks, Mr.

Tobias.

59

Chairman HOUGHTON. Yes, thanks very much. If you can just

hold with us, we will be right back. Thank you.

[Recess.]

Chairman HOUGHTON. Could we continue the hearing? Thanks

very much.

Mr. Lewis.

Mr. LEWIS. Thank you, Mr. Chairman.

Mr. Fox, Mr. Tobias stated that to his knowledge no Customs inspector had complained about being told to engage in racial

profiling. To your knowledge, is this the case? Is this true?

Mr. FOX. There has been a well-publicized case out of your district in Georgia where a Customs inspector named Kathy Harris

complained about how the investigations and the searches were

going on, and she then got disciplined, and then—I don’t know all

the details of that—but then it was found that she was actually

correct, and the person who disciplined her then got disciplined

himself. So, there was a big thing in your home district regarding

that.

Mr. LEWIS. Mr. Fox, would you please describe what criteria Customs and the courts have established regarding a Customs inspector’s ability to stop and search travelers?

Mr. FOX. I am not sure I understand your question. What are the

criteria to stop and search travelers?

Mr. LEWIS. Yes.

Mr. FOX. I have read many, many incident logs, and I have also

read the policy manual carefully. I have taken depositions of Customs inspectors, and it is clear from looking at all these materials

that the criteria are so vague and amorphous they could literally

be used to justify the search of anybody, and I will give you some

examples.

Frequently, for the women that they have done searches of coming from Jamaica, they will list three factors. They will say coming

from a source country; they will say they wore bulky clothing, and

they were nervous. That is the most common tactics used among

Customs inspectors when they have to justify a search, and the interesting thing about that is that in deposition testimony, Customs

inspectors have said that every country in the world can be deemed

to be a source country and is deemed to be a source county, because you never know where a traveler had been prior to the flight

which brought them to the border anyway.

So, when you couple that with the policy manual—and I think

it was mentioned there were 43 factors that are looked to. The 43

factors, themselves, are so vague and amorphous, they can be used

on anybody. For instance, the factors—we will say if a person acts

unusually cool in light of questioning, that could be a sign. Then

they also say if a person acts unusually argumentative, that could

be sign, or contradictory. If a person—another one—if a person

wears revealing clothes, that could be a sign. If a person dresses

real conservatively, that can be a sign. And you can go down the

list and see that every factor, almost, has a counterpart, which

then makes it potentially applicable to 99 percent of the travelers

that come through, and then Customs can just use these—and they

do—as they feel necessary.

60

Mr. LEWIS. Professor Johnson, how would you address the argument that race should be a factor and that inspectors are just doing

their job?

Ms. JOHNSON. Well, it may be the case that there are somewhat

more proportionately Black women who are engaged in drug trafficking; it may be. We don’t really have the information that would

tell us that, because we just don’t have the data on who’s engaging

that. But even if it were true, it is absolutely clear that whatever

prohibitive ability there might come from race, it is vastly overestimated by Customs. Black women are searched and unsuccessfully

searched at greater rates, but I think even more important than

the fact that it would be statistically erroneous is that that puts

the burden of law enforcement on minority communities, and the

burden of law enforcement has historically always been placed

largely on minority communities, and it is wrong to do that. The

Constitution says it is wrong to do that, and everything we know

about race relations in this country ought to tell us that.

Moreover, I think it is important to notice that there is an additional humiliation of being searched or treated in any disrespectful

way when you know that it is on the basis of your race. So, that

that kind of profiling is not only damaging in that it subjects people to those searches, but it also subjects them to degradation and

humiliation really through racial stigma, which we ought to avoid

at all costs.

Mr. LEWIS. Ms. Buritica and Mrs. Denson, as one Member of

Congress and as a Member of this Committee, let me apologize to

you. What happened to you shouldn’t happen to anyone, and I will

tell you I will do all in my power to see that it never happens

again. This reminds me of another period back in 1961, 38 years

ago, when I was on the freedom ride, and we went to the State

penitentiary at Mississippi, and we were strip searched. Our civil

rights, our civil liberties were being violated, and I think your civil

liberties and your civil rights were violated.

Thank you, Mr. Chairman.

Chairman HOUGHTON. Thank you, Mr. Lewis.

Mr. Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman.

Ms. Buritica and Ms. Denson, let me also echo what Mr. Lewis

has said. There really is no amount of money that can compensate

you for the experience that you have undergone. I recognize, Ms.

Buritica, that in your testimony, you mentioned that there was

some sort of a court settlement. I assume that was without a jury

trial. Was that settlement reached before going to a jury?

Ms. BURITICA. I am having a hard time——

Mr. HULSHOF. Yes, ma’am. In your testimony, you mentioned

that you received a monetary award after a civil lawsuit was filed.

Was that an out-of-court settlement that you reached with the

other side or was that after a jury trial?

Ms. BURITICA. It was after a jury trial, sir.

Mr. HULSHOF. Ms. Denson, let me ask you without divulging

the—I recognize you have counsel with you—is there ongoing litigation regarding your situation right now, Ms. Denson?

Ms. DENSON. Yes.

61

Mr. HULSHOF. OK. Let me turn, Mr. Fox and Professor Johnson.

Professor Johnson, time doesn’t permit—I would love to have a

good dialog with you about having defended and prosecuted 17 capital murder cases, the issue of race in capital crimes, but that is

not the issue that is here before us.

Mr. Fox, let me ask a couple of questions. The statistics that we

have up here, Customs say that there have been only 12 cavity

searches in the entire country last year. Is that true or false or do

you take issue with that number?

Mr. FOX. Well, I can answer it this way: I have seen their statistics from 1997, and they list zero Black women being cavity

searched in 1997; I personally know of three.

Mr. HULSHOF. So, some question—and any time we start talking

about statistics, you recognize or you have mentioned in your testimony, Mr. Fox, that African-American women are searched 46 percent of the time. Professor Johnson, you mentioned that Black

women are likely to face eight times the risk of a strip search, and

I know when we get into these numbers, I don’t know that we can

compare them.

For instance, let me ask you, Mr. Fox, you mentioned, in your

testimony that one in five searches of African-American women are

positive; that is 20 percent of the time contraband is discovered.

Now, when you include the word ‘‘searches,’’ does that mean like

a Terry v. Ohio pat down or are you talking about a cavity search

or a strip search?

Mr. FOX. Actually—to correct that—it is actually more than 80

percent, and I believe the number 17 percent. So, 83 percent of the

time there is nothing there, and I reviewed all of the incident logs

from those searches. Many times, the drugs were found in the luggage or in other places; they weren’t necessarily found in the body

cavity.

Mr. HULSHOF. So, when you include 17 percent of the positive

searches, as you cite, that could include clothing, luggage beyond

the very intrusive type of searches that we have been hearing

about today?

Mr. FOX. It does include that.

Mr. HULSHOF. Do you agree, Mr. Fox, or disagree with the Commissioner that pad down searches and the more intrusive searches

are, in fact, a deterrent at our borders to stem the flow of drugs

coming into our country?

Mr. FOX. Of course they are deterrent. I think what has to be

looked at is the costs that it is costing society against the evil you

are trying to eradicate, and I know—and a lot of numbers have

been thrown out—I have the statistics from 1997 at O’Hare, and,

for example, they found 56 pounds of cocaine at O’Hare in 1997.

That is 56 pounds too much, no doubt, but it is not the great big

numbers, and when you weigh that against the cost that this has

done to people’s lives, I am not sure if it is worth it. And, at some

point, when you balance the cost against the evil you are trying to

eradicate, you cross the line from being a democracy to being a police State, and I think we might have gotten there.

Mr. HULSHOF. Mr. Fox, do you take criminal cases regarding

these situations, as well, or mostly civil litigation?

Mr. FOX. I have taken one criminal case.

62

Mr. HULSHOF. Do you believe that there—you mentioned in the

last page of your testimony that a magistrate’s authorization

should be required; that is a search warrant before searches could

take place. Would that include all searches, including casual contact or maybe a pat down?

Mr. FOX. No, I believe—and I think the case law would support—

that once you become strip searched that is a serious enough intrusion that your liberty interests are implicated, and a magistrate

would be required.

Mr. HULSHOF. In one of your examples from Customs logs, you

point out in the first one—since that is probably the one time that

I am going to have to ask you—‘‘frequent traveler from a source

country of Jamaica,’’ which you would agree is known as a source

country for importation of drugs, would you not?

Mr. FOX. They say it is. I don’t have any comparison statistics.

Mr. HULSHOF. OK. Fifty percent of the cocaine is seized from

passengers coming from flights from Jamaica. Does that comport

with the numbers that you know or should we just leave the numbers aside?

Mr. FOX. That is consistent, but the problem is they leave out—

they don’t search the flights coming from many European countries

and other places in the world.

Mr. HULSHOF. Mr. Chairman, if you would just indulge me for

this follow-up. On that one example from the Customs log, ‘‘frequent traveler from Jamaica through Miami; three trips in the

course of 4 or 5 months.’’ Would it not be reasonable or is it reasonable for Customs to ask questions regarding reason for travel and

other pertinent information, and if a business traveler, legitimate

business traveler, would you not expect there to be some sort of

documentation they could prove, show to these Customs—that is

not an intrusive stop, is it?

Mr. FOX. If they were to stop white males who were frequent

business travelers and do the same thing, I would have no problem

with it, but they don’t.

Mr. HULSHOF. My time has expired, Mr. Chairman, and I thank

you for the time.

Chairman HOUGHTON. OK, Mr. Hulshof, you may want to ask

other questions.

I would like to, sort of, associate myself for a minute with Mr.

Lewis, who I work with on a variety of different projects.

Clearly, there is racial bias in this country; there is no question

about that. We hope it is less than it was, but it is still there. We

hope we are doing things to help improve that, and you just have

to keep working on it, bit by bit by bit. So, I guess the question

for today’s hearing is that with the Booze-Allen report in the background making certain suggestions, are those the things or are

there other things we can do to make the Customs Service more

sensitive to this. I would really like to ask you, Mr. Tobias, what

you think?

Mr. TOBIAS. Well, thank you, Mr. Chairman. One thing I would

like to say is that NTEU is currently representing Kathy Harris in

a disciplinary procedure, but that is not based on a contention that

she was told to use racial statistics.

63

And I think it is important to keep in mind when we are considering these issues, that while maybe 56 pounds of illegal narcotics

were seized in O’Hare, in 1998, 2.5 tons of illegal narcotics were

seized across the country from people who were carrying it on their

person or in their luggage. That is a lot of drugs. And I think that

the focus has to be on the fact that people do bring illegal drugs

into this country on their person, and what we have to be doing

is focusing on identifying those folks who are indeed the most likely carriers and supporting these Customs inspectors and canine enforcement officers with the training and the technology that they

need to be successful. Obviously, the trauma that is associated with

making a mistake is large, and so a lot more work has to be done,

and I think a lot more work can be done to do a better job as a

Customs inspector and a canine enforcement officer.

Chairman HOUGHTON. OK. Mr. Rangel, I would like to call on

you. You have always been very sensitive and concerned about

these issues. So, would you like to do some questioning here?

Mr. RANGEL. Thank you for the courtesy, Mr. Chairman.

I couldn’t help but think of my mother, sister and daughter when

I heard the testimony of these ladies. I suspect that most people

when they hear these type of stories put themselves in the same

situations as to how they would have felt if something like that had

happened to one of their loved ones. I think it takes a lot of courage

to come here publicly and to share with us these experiences. So,

at least on this side of the mike, when part of the Government goes

wrong, we apologize for that part of the Government.

Mr. Tobias, I am really disappointed at the lack of outrage in response to the testimony we have heard and the questions that you

have been asked. To read your testimony, one would think that an

attack has been made on the integrity of the dedicated men and

women who serve with Customs. Nothing is further from the truth.

What we are talking about are people who behave in such a manner that decent human beings find that to be repugnant. The

Chairman of this Committee was asking you what contribution in

a positive way could you make to assist us in seeing that these

type of things don’t happen again. But you said that you really

think the focus ought to be on drugs and likely carriers. Oh, no.

That is not what this hearing is about.

This hearing is about human beings, American citizens, being

treated in an uncivilized way that makes no American proud. That

is the focus of this particular hearing. If you think the focus should

be on likely carriers, then we would assume that without the statistical data, that you have already made the conclusion, based on

the work of Customs, that Blacks and Latinos are more likely carriers of drugs than others. We would assume that if you don’t really check Whites and you only check Blacks and you find more

Blacks have drugs because you didn’t checks Whites, that this is

a formula that you approve. We would assume that the 21⁄2 tons

of drugs that you, I think, say were confiscated, that all of this

came as the result of the uncivilized way in which we handled

these two ladies, in that they were hidden in body cavities. We

would assume that your defense would mean that we don’t want

to stop drug trafficking, that we don’t want searches. None of this

is true. We are talking about the manner in which citizens have

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been treated; that is what we are talking about. And we are asking

for your assistance in how we can stop drugs without having to be

a part of this type of treatment, which is basically un-American.

Now, do you know, since you are armed with so many statistics,

how many people have cavity body searches and how much drugs

was actually confiscated as a result of these searches?

Mr. TOBIAS. Mr. Rangel, I think it was before you came into the

room. I started my testimony by apologizing to the witnesses

who——

Mr. RANGEL. I was here. I said it lacked outrage.

Mr. TOBIAS. And I think the experiences that were described

here were indeed and are indeed humiliating, and, as I say, I

apologize to the folks who were here, and, obviously, this kind of

action, this kind of result is unacceptable; there is no question

about that.

Mr. RANGEL. How much drugs came out of body searches?

Mr. TOBIAS. I don’t have the answer to that.

Mr. RANGEL. How many body searches did you have where there

were no drugs?

Mr. TOBIAS. I don’t know the number.

Mr. RANGEL. Well, let me tell you one thing, Mr. Tobias, no one

has challenged the integrity of Customs in terms of its risking their

lives in trying to protect Americans. But, each time something is

done wrong, there is no need to defend the Corps. We defend the

Corps, and we always have, but there are certain people in the

Corps that bring disgrace on Customs, on the U.S. Government,

and you and I, together, we have to make certain that this doesn’t

happen. Clearly, there is overtone of racism in the United States,

and Customs is able to avoid having people just look at people’s

color. These numbers that we have, and you will look at and get

back to us, are astounding. It is not justified.

The question I will ask you to study and come back to us is this:

When you ask a person to submit to the type of things that these

ladies and probably men are asked to do, I want to know whether

you think it is a deterrent to drug smuggling? I want to know how

successful you have been with these searches? The Commissioner

truly believes that those who put these type of dangerous drugs in

their bodies, and have it in their bodies for over 8 hours, that they

put themselves and their lives at risk. Do you believe that to be

so?

Mr. TOBIAS. I do.

Mr. RANGEL. You might consider, then, letting all passengers

know that they might be held for 8 hours. I think they would respond a lot more readily if they thought their lives were in danger.

I think Attorney Fox said it. For the results we get, I want you to

tell us, Mr. Tobias, is it worth what we are doing? There has to

be a balance.

I hope you continue to do the good work at Customs, and I hope

to see the union in the frontline of maintaining its reputation by

making certain that we don’t have complaints like this because of

the way these people have been treated.

Mr. TOBIAS. I will be happy to respond to you, Mr. Rangel.

Mr. RANGEL. Thank you, Mr. Tobias.

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Chairman HOUGHTON. Picking up on this, Mr. Tobias, the BoozeAllen report really is written in terms of communication between

Customs and the passengers. The thing that intrigues me is this

Personal Search Review Commission, because it not only involves

the mechanics of it, but also the training, emphasis, and the weeding out of those people. Also, I would imagine, that it would take

a look at recruitment. I would hope that you could have a very

close look at that, as it evolves, and as the Commission begins to

work. I think it will have a direct bearing on the things which we

have been concerned with here today.

Well, ladies and gentleman, I want to thank you so much, particularly, Ms. Buritica and Ms. Denson. I really appreciate this,

and I hope if there are any other issues that you think that we

ought to look into in our overall process of hearing and oversight

on this case, you let us know.

So, thank you.

[Whereupon, at 11:42 a.m., the hearing was adjourned.]

[Submission for the record follow:]

Statement of Andrew M. Caplan, Alexandria, VA

I submit the following statement to the Subcommittee based on my concerns, as

both an attorney and an American citizen, that the U.S. Customs Service is exercising its statutory authority in a manner which is resulting in the abuse of innocent Americans, and in conduct by individual Customs officers that is marked by

racist, anti-Semitic, and other forms of discrimination inconsistent with our Constitution and its command that all persons be accorded equal protection of law.

The first part of this statement recounts an incident to which I was recently a

party upon my return to the United States from a trip overseas. The second part

examines the relevant Constitutional background to Customs’ search and seizure

authority and discusses the inconsistency between current Customs’ practices and

the Constitutional guarantee of equal protection of law. Finally, the third part of

this statement draws on my experience as a former military attorney in the U.S.

Armed Forces to suggest a potential legislative amendment to Customs’ existing

statutory authority which, in my view, should correct the current deficiencies in the

agency’s practices.

During the last two week of October 1998, I visited Sweden, Norway, and the

Netherlands. I returned to the United States on October 30, 1998 via Amsterdam,

the Netherlands, arriving at the Detroit Metro-Wayne County Airport on Northwest

flight 8617 (which is a code-share flight operated by KLM Airlines). My ticket for

this flight was purchased with a major credit card, through a travel agent, as part

of a travel package (including air tickets and hotel accommodations) sponsored by

Northwest World Vacations.

Upon exiting the aircraft, I proceeded through the jetway connecting the airplane

with the gate area. While in the jetway, I observed what I recognized to be a drug

detection dog. I proceeded past the dog without incident. However, while still in the

jetway, I observed the same dog approach a woman standing near me and, in a spirited and zealous fashion, lunge at the individual, requiring a uniformed officer to,

in effect, remove the dog from the person. The actions of the dog in relation to the

individual were entirely unique and distinct from the dog’s actions in relation to all

the other passengers in the jetway and, in my view, constituted a possible ‘‘alert’’

on the individual. The individual in question was a pale-complexioned Caucasian

woman with light blonde hair who appeared to be approximately 30 years of age.

After clearing the Immigration/Passport Control area and retrieving my checked

baggage, I proceeded to the Customs checkpoint area and was approached by a uniformed Customs officer. I was wearing black, wing-tip shoes, charcoal grey wool

slacks with cuffs, a black turtleneck shirt, a grey wool sportscoat, and a tan London

Fog trench coat. (Due to the fact that northern Europe can be quite cold by the end

of October, virtually all of the arriving passengers were wearing bulky outer garments of one sort or another.) My hair was roughly the same length as when I was

on active duty as a naval officer, and I was not wearing any facial hair. I was 36

years of age at the time. The Customs officer asked to see my passport and Customs

declaration form. She asked where I had traveled and what was the purpose of my

trip. She asked what I do for a living and who is my employer, to which I responded

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that I am an attorney and work for a federal agency, and I specified the agency.

She then asked who was my prior employer, to which I responded that I had previously worked for a different federal agency, and specified the agency. She then

asked, again, what type of work I do, and I, again, stated that I am an attorney

and work in the General Counsel’s office of my agency.

(The views expressed in this statement are strictly my own as a private citizen

and are not intended to represent the views or policies of my current agency or

former agency. For this reason, I have omitted the names of my current and former

agency. I will be happy to supply this information to the Subcommittee upon request.)

Without explanation, I was ordered by the officer to follow her, in full glare of

the other passengers (who appeared to be proceeding through the Customs area

without any questioning or search at all) to a different room where I was ordered

to place my luggage, a 26-inch upright, ‘‘pullman’’ style American Tourister suitcase,

as well as a matching carry-on case, onto a large metal examining table.

The space constraints of this statement prevent me from chronicling the full extent of the abusive treatment to which I was then subjected. In all, I was held in

custody for almost an hour. During that time, the officer laboriously searched my

luggage, going so far as to X-ray a double-sealed bottle of Scotch I had purchased

as a gift for my father at the duty-free shop in Amsterdam. This search entailed

the Customs officer carefully scrutinizing virtually all of my possessions, including

clothing, shoes, toiletries, medicines, vitamins, a book, magazines, a camera—even

children’s T-shirts I was bringing as gifts for my nieces and nephew.

In addition, I was subjected to what I can only describe as a humiliating interrogation in which I was ordered to chronicle virtually every detail of my vacation. In

addition, I was ordered to produce for inspection all my hotel receipts, my airline

ticket receipt, and was ordered to recite for the officer the name and address of the

travel agent who had booked the vacation. Moreover, the officer inquired whether

I had ever been searched before on my prior trips abroad; when I responded that

I had not, the officer exhibited an expression of dismay and ordered me to specify

what airports I had traveled through in the past. When I responded that my prior

trips overseas had been through JFK airport in New York, the officer responded,

‘‘Are you sure you’ve never been searched before?’’—to which I responded that I had

not been searched before, to which she yet again asked, ‘‘Are you sure?’’—to which,

yet again, I responded that I had not been searched before.

After completing the search of my carry-on bag and finding nothing suspicious,

after nearly having completed the search of my checked suitcase and finding nothing suspicious, after conducting the aforementioned interrogation, and even after

having been apprised that I was an attorney who worked for a federal agency, the

Customs officer informed me in no uncertain terms that I was a suspected drug

smuggler. (The officer stated, ‘‘Do you know what I’m looking for? Tell me what I’m

looking for . . . I’m looking for drugs. Am I gonna find drugs?’’)

Finally, I was ordered to produce a business card or some other form of professional identification. I provided the officer with my bar association identification

card, which she carefully analyzed. The officer took the ID card and my passport

to a telephone in another part of the room and conducted an extended telephone

conversation while I remained in custody. After approximately 10–15 minutes, the

officer returned, stated that I had been to a ‘‘source city,’’ gave no other explanation

for the treatment to which I had been subjected, told me I could leave and directed

me toward the Northwest terminal. As I exited, I noted that all the other passengers were gone from the luggage arrival/Customs area, and that I had been held

in custody for close to an hour. While I was held in custody, I noticed only one other

person in the ‘‘secondary search area,’’ a bearded, olive-complexioned man who appeared to be approximately 40 years of age. That individual was released after 5–

10 minutes. I did not observe in the secondary search area the blonde-haired woman

I had previously witnessed being lunged at by the drug detection dog.

The leading judicial decision addressing the Constitutional limitations on Customs’ search and seizure authority is United States v. Montoya de Hernandez, 473

U.S. 531 (1985). That case involved an individual convicted of attempted smuggling

of narcotics into the United States through the use of an alimentary canal ‘‘balloon’’

device. However, the case is instructive regarding border searches generally. The

Montoya decision held that under the Fourth Amendment’s search and seizure

clause, ‘‘routine searches’’ of persons and effects at border entrances are not subject

to any requirement of reasonable suspicion, probable cause, or warrant. However,

the decision held that the detention of a traveler at a border beyond the scope of

a ‘‘routine search’’ and inspection is justified only if the Customs officer reasonably

suspects that the traveler is smuggling contraband. The Court defined ‘‘reasonable

suspicion’’ as a ‘‘particularized and objective basis for suspecting the particular perVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
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son’’ of smuggling. Thus, the Court made clear in Montoya that for any search beyond that of a ‘‘routine’’ search, there must be reasonable suspicion—an objective

standard requiring particularized, articulable facts; the officer’s subjective impressions, or ‘‘gut feelings,’’ are insufficient to justify any search beyond that which is

‘‘routine.’’

The majority opinion in Montoya did not define the phrase ‘‘routine search.’’ Justice Brennan’s opinion, while dissenting with respect to other issues in the case, was

in concurrence, in effect, with respect to the majority’s view that no reasonable suspicion (or greater standard) is required to conduct ‘‘routine’’ searches at international borders. His opinion indicated that routine searches are ‘‘typically conducted on all incoming travelers’’ (emphasis added). Moreover, the opinion indicates

that reasonable suspicion is required for individual travelers to be ‘‘singled out’’ for

further investigation.

In the case of United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court

discussed the phrase ‘‘routine search’’ in the context of vehicle searches for illegal

aliens near the Mexican border. There, the Court noted that the Fourth Amendment’s limitation on search and seizure power is intended to prevent ‘‘arbitrary and

oppressive’’ police tactics. The Court upheld the validity of checkpoint vehicle

searches based on a ‘‘routine search’’ rationale. In its decision, however, the Court

placed great emphasis on the fact that the checkpoint searches were non-discretionary (i.e., all vehicles passing through the checkpoint were included) and that all

the searches (including those involving secondary search procedures) were extremely

brief in nature. The Court noted that another type of vehicle search for illegal

aliens, known as ‘‘roving-patrols,’’ which, unlike the checkpoint searches, are discretionary in nature, can only be undertaken when the stopping officer is aware of specific, articulable facts, when taken with rational inferences, would reasonably warrant suspicion that the vehicle contained illegal aliens.

Thus, the Court’s decisions make clear that a routine border search is characterized by two primary elements: (1) it must be brief in nature; and (2) it must be nondiscretionary, i.e., it must be based on procedures to which all similarly-situated

persons are subjected (be they all passengers disembarking from an airplane, or all

motorists passing the same checkpoint along a highway). Any search that does not

meet the definition of a routine search may only be conducted based on reasonable

suspicion-a standard requiring that there be objective, articulable facts suggesting

the individual may be in violation of law.

Montoya de Hernandez was a Fourth Amendment search and seizure case. The

essence of such a case is evidentiary in nature-that is, the court is exploring whether, under the Exclusionary Rule, evidence must be suppressed because law enforcement officials violated the Fourth Amendment’s requirement that searches and seizures be conducted in a reasonable manner. A ruling that a particular police practice does not offend the Fourth Amendment means only that, within the context of

a criminal proceeding, the government will be permitted to introduce the seized evidence and use it against the accused. The ruling does not necessarily imply that a

particular police practice is otherwise legal when viewed in the context of other Constitutional requirements, outside the limited issue of what is admissible in a criminal proceeding. In other words, the fact that a government agency is in compliance

with one provision of the Constitution does not give the agency license to violate

other provisions of the Constitution.

It is well settled that the Fifth Amendment requires the federal government to

accord equal protection of law to all citizens. (As it is frequently conceptualized, the

Due Process clause of the Fifth Amendment ‘‘incorporates’’ the equal protection doctrine of the 14th Amendment applicable to the states). Likewise, it is well settled

that discriminatory practices based on racial criteria are subject to the most rigid

scrutiny and are only allowed when there is a compelling governmental interest and

the discriminatory practice is necessary to the accomplishment of a legitimate purpose rationally related to that compelling interest. In addition, the Court has held

that while the burden is on the individual alleging unlawful discrimination to demonstrate that the governmental action had a racially discriminatory purpose, such

may be demonstrated by showing that the totality of the relevant facts gives rise

to an inference of purposeful discrimination, and that under some circumstances,

unlawful discrimination may be demonstrated where the discrimination is very difficult to explain on non-racial grounds. In this regard, an individual need not show

that other members of the same racial group were similarly treated; a single discriminatory governmental act violates the Constitutional requirement of equal protection. Moreover, once an individual has made the requisite showing of racial discrimination, the burden shifts to the government agency to profer a race-neutral explanation for the complained of actions; general assertions that its officials did not

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discriminate or that they properly performed their official duties do not satisfy the

agency’s burden. See Batson v. Kentucky, 476 U.S. 79 (1986).

In short, the Customs Service, as a federal agency, is required to comply with

both the Fourth Amendment and the Fifth Amendment; it may not subject members

of the public to unreasonable searches or to treatment that is arbitrary and oppressive and, at the same time, it may not engage in racially discriminatory practices.

While the Court in Montoya indicated that Customs could perform routine searches

without any reasonable suspicion or probable cause, nothing in the Court’s decision

indicated, either expressly or by implication, that Customs could exercise this authority in a racially discriminatory manner, that the Custom Service, alone among

federal agencies, is excused from the Fifth Amendment’s requirement of equal protection, or that individual Customs officers are at liberty to perpetrate racist, antiSemitic, or other unlawful discrimination.

Following the incident described above concerning my return to the United States

from an overseas trip, I reported the incident to the Customs Service, asked for an

investigation into the matter, and posed a number of questions with respect to the

agency’s interpretation of its legal authority, as well as questions concerning the

legal obligations of arriving passengers. Among other points of inquiry, I asked

whether the Customs Service had determined that federal law permits Customs officers to subject persons entering the country at international airports to discriminatory treatment on account of such person’s race, religion, ethnicity, or national origin. Although most people would assume that in the United States, the answer to

such a question would be self-evident, the response I received suggests that the Customs Service, as a matter of law, does not consider itself constrained by the Constitutional guarantee of equal protection.

My inquiry was addressed to the Chief Counsel of the Customs Service, who responded, through the Associate Chief Counsel for Enforcement, Steven L. Basha,

that his ‘‘office does not provide legal opinions to the public.’’ This response is interesting in itself, since legal offices in federal agencies, in fact, routinely provide advisory and interpretative legal opinions to members of the public concerning matters

that are under the purview of their agency. Mr. Basha indicated that my inquiries

were being forwarded to the office of the Assistant Commissioner for Field Operations, which would respond to me directly. With respect to my inquiries, he indicated only that searches ‘‘based upon race or ethnicity are not permitted by Customs

policy’’ (emphasis added). Nowhere in the letter did Mr. Basha indicate that such

discrimination is against the law, only that it violates Customs ‘‘policy.’’

Several months after sending the agency my inquiry, I received a response from

John B. McGowan, Director, Passenger Operations, Office of Field Operations. Of

the eight questions I posed in my correspondence, Mr. McGowan’s letter was responsive to only one, that is, whether racial/ethnic discrimination is permitted by Customs policy. To this, Mr. McGowan indicated only that a ‘‘person’s race and ethnic

background are not part of the decision process.’’ Again, nothing in the letter states

that the Customs Service considers racial/ethnic discrimination to be illegal-only

that it violates the agency’s ‘‘policy.’’

It is disturbing, to say the least, that in the year 1999, decades after most Americans had assumed it was a long settled matter that it is illegal for employees of

a government agency to engage in racial and ethnic discrimination, that two senior

officials of a federal agency, when given the opportunity to do so, specifically decline

to state that it is a violation of law for employees of their agency to perpetrate such

discrimination. With respect to explaining why I, alone among 400 some-odd passengers on the flight, was held prisoner for almost an hour, subjected to abusive

treatment, and informed by a Customs officer in no uncertain terms that I was a

suspected drug smuggler, Mr. McGowan offered only that I was selected based ‘‘on

the fact that [I was] arriving from a source city, Amsterdam.’’ The statement is fascinating more for what is does not say than for what it does say. It does not say

I was selected for such treatment because I was arriving from a source city plus

some other specified factor; or that I was selected for such treatment because I was

arriving from a source city plus some other factor which they decline to specify for

law enforcement reasons. Instead, it says only that I was selected for such treatment merely because I was arriving from a source city, period. The letter does not

even pretend that there was anything to distinguish me from any other person who

got off that airplane-other than my ethnic background.

As the Supreme Court has observed, discrimination may be demonstrated where

the discrimination is very difficult to explain on other grounds. In this respect, Mr.

McGowan’s acknowledgment that the treatment to which I was subjected was based

merely on a single factor which applied equally to every person on the plane (i.e.,

that I was arriving from a source city) constitutes an implicit acknowledgment of

discrimination based on ethnicity. I wish this were not so, as I have managed to

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live for 37 years without ever making such an accusation against anyone, let alone

a federal law enforcement officer. Indeed, I would have been vastly relieved if the

Customs Service had proffered some explanation-any explanation-that would reasonably suggest that the treatment to which I was subjected was not based on my

ethnic background. However, given a full and fair opportunity to do so, the agency

has declined to even pretend that there was anything other than my ethnic background that distinguished me from the other passengers on that airplane. I turn

now to what may, perhaps, be the most distressing aspect of this entire affair. I am,

of course, referring to the fact that while I-who proceeded past a drug detection dog

without incident-was subjected to discriminatory and abusive treatment, a pale-complexioned, ‘‘Aryan’’ person who had been lunged at by a drug detection dog was permitted to proceed through the Customs process without being subjected to even

some, much less all, of the humiliating treatment to which I was subjected. Of all

the facts of this case, this by itself would be more than adequate to establish not

only a case of ethnic discrimination, but a particularly stark and disturbing example

of such. (On this point, the response I received from Mr. McGowan stated that the

canine enforcement officer in the jetway indicated nothing unusual and had made

no record of an alert on a passenger. This statement merely underscores the selfevident proposition that persons engaged in improper conduct generally do not keep

written records of such improper conduct, and that law enforcement officers who

perpetrate racial, anti-Semitic, or other illegal discrimination are not likely to make

an official report of that fact.)

Mr. McGowan’s letter also stated that, ‘‘You underwent extensive questioning and

review of travel and other documents in order to verify that you were law abiding.’’

This statement, perhaps more than any other in the letter, summarizes the problem

with the current practices of this agency, and highlights the racial and ethnic bigotry that is being perpetrated. I was required to verify that I was law abiding.

White, Gentile persons-even those who are lunged at by drug detection dogs-are not

required to verify they are law abiding; they are presumed to be law abiding.

Blacks, Jews, Hispanics, and other minority members are accorded no such presumption; we are required to prove that we are worthy of being allowed to re-enter

the country, where no such proof is required of White, Gentile persons.

In fact, the current practices of the Customs Service are in violation of both the

Fourth and Fifth Amendments of the Constitution. In Montoya de Hernandez, the

Supreme Court held that Customs may perform routine searches in the absence of

any objective evidentiary standard (e.g., reasonable suspicion or probable cause).

Montoya was decided at a time when the routine Customs practice was to engage

in brief baggage searches of all returning passengers; indeed, Justice Brennan’s

opinion in Montoya emphasized that such searches are ‘‘typically conducted on all

incoming travelers’’ (emphasis added); he went on to note that reasonable suspicion

is required for individual travelers to be ‘‘singled out’’ for further investigation. In

upholding the authority to engage in routine searches, the Court almost certainly

had in mind the routine searches of the time-searches that were brief and non-discretionary-searches that all arriving passengers were required to undergo.

The current practices of the Customs Service are markedly inconsistent with this

standard. According to the agency itself, fewer than two percent of airline passengers who pass through Customs are subjected to baggage search. On the flight

on which I arrived, the percentage was even lower-just two persons out of approximately 400 on a nearly-full Boeing 747. Under the Court’s rulings-indeed, under the

very definition of the word-a search is not routine if only two percent of passengers

are affected. Searches conducted without reasonable suspicion that involve only two

percent of passengers are precisely the type of arbitrary police behavior that the

Court has held to be in violation of the Fourth Amendment.

The fact that members of racial and ethnic minority groups are overwhelmingly

the victims of such unlawful tactics attests to the fact that Customs-not content

with merely violating one provision of the Bill of Rights-is engaged in widespread

violation of yet a second Constitutional guarantee-that the government is required

to accord all persons equal protection of law. Instead, the Customs Service is permitting its officers to subject citizens of this country to discriminatory treatment based

on racist, anti-Semitic, and other forms of bigotry-discriminatory treatment being

perpetrated with the imprimatur of the United States government. The draft legislation I have outlined below seeks to remedy this shameful practice.

The proposed legislation which follows is based on my experience as a former military attorney. As a Navy prosecutor, I represented the government in several drugrelated cases, and I was responsible for sending to prison individuals who were in

violation of federal drug laws. I was very proud to wear the uniform of this country’s

Armed Forces, and I was very proud of the service I performed in helping rid the

Navy of drug offenders. In my experience, the military has by far the most successVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
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ful anti-drug program in this country. One of the reasons the military’s anti-drug

program is so successful is that the program is designed to prevent-in practice as

well as word-precisely the sort of arbitrary and discriminatory practices that are

currently permitted by Customs Service policy. The people who lead our Armed

Forces understand something that the Customs Service does not understand: namely, that to successfully wage any war, be it a war against an armed enemy, or a

war on drugs, it is of vital importance to maintain not only public support for the

war effort, but also the support of the very troops who are waging the war-and that

such support will not be forthcoming if the war is perceived as no more than a pretext for perpetrating racist and ethnic discrimination.

Department of Defense policy (see DoD Directive 1010.1) provides for nonconsensual urinalysis testing for drug use under specifically-prescribed circumstances. The

first of these is when the testing is part of an inspection program. Such urinalysis

inspections fall into two sub-categories: unit sweeps (where all members of a unit,

or all members of a defined sub-unit, are required to submit samples) and random

samplings (generally derived by randomly drawing a number, and all unit members

whose social security number ends in that digit are required to provide a sample).

Both forms of inspection share the attribute of being non-discretionary in naturethe decision that a particular person will be required to provide a sample is based

either on the draw of numbers, or on the person’s membership in a unit or sub-unit.

An analogous practice with respect to arriving passengers passing through Customs

would be conducting baggage searches of all arriving passengers (or at the very

least conducting searches based on a genuinely random selection process).

The second circumstance in which a nonconsensual urinalysis may be conducted

is when there has been a search authorization issued based on a finding of probable

cause when there is reasonable belief that the sample to be collected contains evidence of illegal drug use. This is an objective standard requiring specific, articulable

facts indicating an illegal act has occurred.

These are the only circumstances in which the military uses nonconsensually obtained urine samples in a criminal proceeding to form the prosecution’s case in

chief; samples obtained in a manner not in conformity with these principles may be

used in a criminal proceeding only for impeachment or rebuttal. (Urinalysis results

obtained through neither a valid inspection, nor through probable cause, may be

used for other non-criminal, administrative purposes-such as safety mishap investigations and fitness for duty determinations-clearly not analogous to Customs

searches of arriving passengers.)

With this as background, I propose the following statute:

Section 1582 of Title 19 of the United States Code is amended to read as follows:

(a) The Secretary of the Treasury may prescribe regulations for the search of

persons and baggage and is authorized to employ female inspectors for the examination and search of persons of their own sex; and all persons coming into

the United States from foreign countries shall be liable to detention and search

by authorized officers or agents of the Government under such regulations, subject to the following limitations.

(b)(1) The limitations described in subsections (b)(2) through (b)(4) of this subsection shall apply to persons arriving in the United States by way of any common carrier transportation, including, but not limited to, commercial passenger

airline service and maritime passenger vessels.

(b)(2) Except as provided in subsections (b)(3) and (b)(4) of this section, and

notwithstanding any other provision of law, the search and detention authority

described in subsection (a) of this section shall be exercised only in a non-discretionary manner in which equivalent procedures relating to search, detention,

and all other matters pertaining to the processing of persons described in subsection (b)(1) are applied uniformly to all persons arriving in the United States

on the same airplane, maritime vessel, or other common carrier.

(b)(3) Disparate procedures of any sort, including, but not limited to, those relating to search, detention, or questioning, may be carried out only if there is

reasonable suspicion to believe that an individual passenger is in violation of

United States law. For purposes of this section, the phrase ‘‘disparate procedures’’ shall mean any procedures not applied uniformly to all persons arriving

in the United States on the same airplane, maritime vessel, or other common

carrier. The phrase ‘‘reasonable suspicion’’ shall mean a particularized and objective basis for suspecting the individual passenger of being in violation of

United States law.

(b)(4) No person entering the United States may be held in detention in excess of six hours, or be subject to any search, inspection, or viewing, by any

means or device, of such person’s internal bodily cavities, genitalia, buttocks,

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rectum, or, in the case of a female passenger, breasts, except when so authorized by court order.

(b)(5) No person entering the United States may be held in detention in excess of two hours without being afforded an opportunity, at Government expense, to make a telephone call to any person chosen by the detained passenger.

The Government may monitor such telephone calls, but the substance of such

communications will be admissible in any subsequent legal proceeding only as

allowed by the Federal Rules of Evidence. A detained passenger shall be afforded an opportunity to make such a telephone call at least once for each additional two-hour increment in which the individual continues to be held in detention.

This statute would, if enacted, require the Customs Service to comply with the

Constitution of the United States and the decisions of the Supreme Court. Subsection (b)(2) makes clear that searches may be conducted without any objective

level of suspicion only when conducted under ‘‘routine’’ circumstances, and that such

circumstances exist only when based on procedures applied uniformly and in a nondiscretionary manner. Subsection (b)(3) makes clear, as the Supreme Court has

held, that non-routine search procedures may be utilized only when there is reasonable suspicion that a violation of law has occurred. At present, Customs is performing suspicionless searches on fewer than two percent of arriving air passengers.

Search procedures applied to only two percent of passengers are clearly not ‘‘routine.’’ Although there do not appear to be published statistics available with respect

to baggage searches, Customs’ statistics indicate that during 1998, over 43 percent

of passengers subject to some form of body search were Black or Hispanic. It is readily assumable that similar statistics are true for passengers subject to suspicionless

baggage search and interrogation. When adding in Jews, Asians, Arab-Americans,

and other minority groups, it is clear that well over 50 percent of persons subject

to disparate procedures based on no objective suspicion are minority members.

The prevalence of such discrimination is not difficult to understand. Customs allows its officers to subject passengers to disparate treatment based on a subjective

standard, i.e., one that is based on what the individual officer, in his or her own

mind, without reference to any objective criteria, considers to be suspicious. If the

officer, in the recesses of his mind, considers Blacks or Jews to be inherently suspicious, the officer is permitted, notwithstanding the stated ‘‘policy’’ to the contrary,

to subject the passenger to discriminatory and abusive treatment-when, in fact,

there is no objective indication that the particular passenger is any less likely to

be a law abiding citizen than any of the White, Gentile passengers.

The study of psychology teaches us that human beings, by nature, tend to be suspicious of people who are different from themselves. If this is true, as there appears

to be empirical reason to believe, then allowing the Customs Service to continue to

subject people to disparate treatment based on the subjective biases of individual

Customs officers is to ensure that this agency, with the imprimatur of the United

States government, will continue to abuse and stigmatize citizens of this country

based on race, religion, ethnicity, and other minority status. The proposed statute

remedies this by requiring that the agency only subject persons to disparate, nonroutine treatment when there is reasonable suspicion to believe that a person has

done something illegal. In essence, it requires that the Customs Service accord

Black people, Jewish people, Hispanic people, and other minority members the same

presumption of innocence that is currently accorded White, Gentile people.

The proposed statute is a reasonable balance between legitimate law enforcement

objectives and legitimate Constitutional rights of individual passengers. It allows

Customs to continue to perform suspicionless searches, provided they are performed

in a uniform, non-discriminatory manner. The agency has the flexibility to move resources, as it deems necessary, to perform such suspicionless searches of all passengers arriving from ‘‘high risk’’ areas, and it even has the flexibility to determine

which specific plane or ship arrivals should be subject to more rigorous procedures.

The only thing the agency will no longer have the flexibility to do is to subject people to racial, religious, and ethnic discrimination. No agency of the United States

government should ever have flexibility of that sort.

Moreover, the proposed statute will almost certainly increase the amount of seized

narcotics and other contraband. Last year, according to recent testimony by the

Commissioner of the Customs Service, of the 1.35 million pounds of narcotics seized

by Customs, only 5,000 pounds were seized from air passengers; that represents less

than one-half of one percent. The reason for this abysmal record is easy to understand; it is the result of conducting operations based on racial and ethnic bigotry

rather than on valid law enforcement methods. In fact, Customs is catching only an

infinitesimal amount of the narcotics that are being smuggled into the country by

air passengers-the vast majority of which is being smuggled by blonde-haired, blueVerDate 20-JUL-2000 15:51 Sep 18, 2000 Jkt 060010 PO 00000 Frm 00075 Fmt 6633 Sfmt 6602 K:\HEARINGS\66023.TXT WAYS1 PsN: WAYS1
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eyed people who are well aware of Customs’ discriminatory practices. Anyone who

was in the Detroit airport on October 30, 1998, as I was, and witnessed such a person being lunged at by a drug detection dog and not being subjected to even the

most minimal search procedures, to which minority members are routinely subjected, would have no difficulty understanding the reason for Customs’ appalling

record. By requiring all non-uniform searches to be based on reasonable suspicion,

the proposed statute will force Customs to develop more effective detection and investigative techniques, thus increasing the amount of seized narcotics.

Finally, subsections (b)(4) and (b)(5) seek to remedy the most abusive of Customs’

current practices by ensuring that no person is subject to search of their intimate

body parts except when so authorized by a detached judicial officer, and by ensuring

that most fundamental of American rights-that no person may be held incommunicado for an indefinitie period by the police.

In summary, the proposed statute precludes the Customs Service from subjecting

persons to discriminatory treatment based on the subjective impulses of its officersa system which has led to the current prevalence of racial and ethnic discrimination. Instead, it establishes the principle that non-uniform search procedures may

be utilized only when an objective standard of suspicion has been met. The Armed

Forces have long operated under such a principle, as discussed above; indeed, the

military, which runs by far the most successful anti-drug program in the country,

uses a ‘‘probable cause’’ standard for its discretionary drug testing intended for use

in the prosecution’s case in chief. The proposed statute imposes on Customs a lower

objective standard, ‘‘reasonable suspicion.’’ If our military leaders can run the

Armed Forces of this country using an objective standard for their anti-drug program, there is no legitimate reason why a civilian agency like Customs cannot run

its search program using an objective standard that accords to civilians the same

rights that members of the military have-to be free of abusive, arbitrary, and discriminatory treatment.

In conclusion, I would like to thank the Chairman, the Ranking Minority Member,

and the other Members for holding these very important hearings, and for allowing

members of the public the opportunity to express their views. If there are any questions about this statement, I will be happy to provide any additional information

or be of any further assistance to the Subcommittee.

Æ