```

[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]

 
          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

                     U.S. GOVERNMENT PRINTING OFFICE
66-023 CC                    WASHINGTON : 2000

                      COMMITTEE ON WAYS AND MEANS

                      BILL ARCHER, Texas, Chairman

PHILIP M. CRANE, Illinois            CHARLES B. RANGEL, New York
BILL THOMAS, California              FORTNEY PETE STARK, California
E. CLAY SHAW, Jr., Florida           ROBERT T. MATSUI, California
NANCY L. JOHNSON, Connecticut        WILLIAM J. COYNE, Pennsylvania
AMO HOUGHTON, New York               SANDER M. LEVIN, Michigan
WALLY HERGER, California             BENJAMIN L. CARDIN, Maryland
JIM McCRERY, Louisiana               JIM McDERMOTT, Washington
DAVE CAMP, Michigan                  GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota               JOHN LEWIS, Georgia
JIM NUSSLE, Iowa                     RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas                   MICHAEL R. McNULTY, New York
JENNIFER DUNN, Washington            WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia                 JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio                    XAVIER BECERRA, California
PHILIP S. ENGLISH, Pennsylvania      KAREN L. THURMAN, Florida
WES WATKINS, Oklahoma                LLOYD DOGGETT, Texas
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
SCOTT McINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida
                     A.L. Singleton, Chief of Staff

                  Janice Mays, Minority Chief Counsel
                                 ------                                

                       Subcommittee on Oversight

                    AMO HOUGHTON, New York, Chairman
ROB PORTMAN, Ohio                    WILLIAM J. COYNE, Pennsylvania
JENNIFER DUNN, Washington            MICHAEL R. McNULTY, New York
WES WATKINS, Oklahoma                JIM McDERMOTT, Washington
JERRY WELLER, Illinois               JOHN LEWIS, Georgia
KENNY HULSHOF, Missouri              RICHARD E. NEAL, Massachusetts
J.D. HAYWORTH, Arizona
SCOTT McINNIS, Colorado

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.
                            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

 
          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:]

ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS

                       SUBCOMMITTEE ON OVERSIGHT

                                                CONTACT: (202) 225-7601
FOR IMMEDIATE RELEASE

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 class-action 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 commission'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:

      
    Each statement presented for printing to the Committee by a 
witness, any written statement 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 compatible 3.5-inch diskette in WordPerfect 5.1 
format, typed in single space and may not exceed a total of 10 pages 
including attachments. Witnesses are advised that the Committee will 
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, telephone and fax numbers where the witness or 
the designated representative may be reached. 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/WAYS__MEANS/'.
      

    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 Houghton The hearing will come to order.
    Good morning everybody. Thank you for coming here today. 
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,'' and 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 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 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 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. Coyne. Thank you, Mr. Chairman.
    During the 106th Congress, this Subcommittee plans to 
conduct 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.
    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 Houghton. Thanks, Mr. Coyne.
    Mr. Lewis, have you got an opening statement?
    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 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 
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

    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 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.
[GRAPHIC OMITTED]

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[GRAPHIC OMITTED]

[GRAPHIC OMITTED]

[GRAPHIC OMITTED]

                                

    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 
objective-handed 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 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 last-minute 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 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 2\1/2\ 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 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 2\1/2\ 
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 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.
    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.

                                

    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 
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 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 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 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.
    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 in-service 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 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 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 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--2\1/2\ 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 airports 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 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 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 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 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 Columbian-born 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.
    [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 x-rays.'' 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.

                                

    Chairman Houghton. Thank you very much, and maybe we will 
have some questions for you a little later.
    Ms. Denson, would you like to testify?

   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 6\1/2\ 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 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 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.
    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.
    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 Houghton. Thank you very much, Ms. Denson.
    Mr. Fox, would you like to testify?

  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.
    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 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 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 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 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.
    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. 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''.

    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,
                                              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. 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 
self-perpetuating 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 
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 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 race-based 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 Houghton. Thank you very much, Ms. Johnson.
    Mr. Tobias.

  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--
    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, 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 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. 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 inspectors 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.

                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.

                                

                      The 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
                                                 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.
    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 
Customs 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.
    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.
    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.
    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.
    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.
    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 2\1/2\ 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 
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.
    Chairman Houghton. Picking up on this, Mr. Tobias, the 
Booze-Allen 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 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 person'' 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 non-discretionary, 
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 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, anti-Semitic, 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 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 
self-evident 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 drug-related 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 
successful 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 
nature-the 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, 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 non-discretionary 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, 
non-routine 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, blue-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 officers-a 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.

                                
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