Borderline breakdown

Border security is still a very sore point in Canada-U.S. relations

Borderline breakdownThe greatest test of whether the election of President Barack Obama will really repair the strains in Canada-U.S. relations gets under way this month when the secretary of homeland security, Janet Napolitano, comes to visit. The transformation of land border security over the last eight years came to symbolize the tense relations between Ottawa and the Bush administration. The almost 9,000 km of friendly frontier, and gateway to $1.6 billion in trade per day, turned into another front in the war on terror, patrolled by now-armed guards and unmanned drones, riddled with new regulations that business complains tie up trade, and as of June 1, a passport requirement for the first time. From the Canadian point of view, it was the work largely of an overzealous American administration and Congress taking a series of unilateral actions. “The previous attitude was that any additional step that could be taken should be taken without regard for trade,” Public Safety Minister Peter Van Loan told Maclean’s. Like many Canadians, he hopes that will change under Obama. “Now we want to focus on security that is actually effective, and addresses real security threats—counterterrorism, the drug trade, organized crime, immigration issues—and we want to find ways to improve the flow of goods across the border.”

But from the U.S. point of view, the last eight years looked rather different. The world changed on 9/11, and Americans and Canadians reacted with what Paul Rosenzweig, a former senior Department of Homeland Security official who worked on border issues under George W. Bush, diplomatically refers to as “a different sense of urgency.” He suspects Ottawa and Washington will find it just as difficult to resolve their differences under Obama as they did under Bush. “One of the things I’ve learned is that there is this myth that Canadians and Americans are a lot alike in how they view things like trade and terrorism,” Rosenzweig said in an interview. “And they simply are not.” Where Canadians saw U.S. unilateralism, Americans saw Canadian complacency. On both sides, there was an erosion of trust. Can it be rebuilt? “My advice to Secretary Napolitano,” says Rosenzweig, “would be to explore how much of our inability to achieve common objectives with Canada was the product of political issues relating to the Bush administration—and how much of it was fundamental.”

Over those eight years, officials, analysts, and business groups in both countries have long talked about moving security efforts away from land border checkpoints to trusting each other to protect the outer edges of North America, known as “perimeter security” or “synchronization.” But for all the talk, the border has grown ever “thicker,” and problems have been tackled episodically. Early indications are that the situation is unlikely to change. Van Loan, who met with Napolitano on March 18 in Washington, has modest expectations. “There is no overly ambitious grand plan because that simply would not fly right now,” he says. “If one wanted to do a perimeter approach I don’t think there is any appetite for that on the American side. We are looking to make incremental efficiency gains that would not compromise security. We are trying to find ways to make the border work better.”

Rosenzweig, though, argues that the appetite for a North American vision has always been there on the American side—but Canada would not play ball. One case in point, he says, is the issue of small planes. Nearly three years ago, DHS identified “general aviation”—the movement of small, private jets around the world—as a grave threat. The theory was that if Osama bin Laden got hold of a nuclear weapon, it would be far too valuable to stuff into a shipping container and load onto a ship over which he would lose control for weeks as it crossed the seas, vulnerable to detection, bad weather, or even piracy. A more logical step, DHS reasoned, would be to load the lethal cargo onto a private plane piloted by a suicidal recruit, and, for example, file a flight plan for JFK airport, then swerve over Manhattan en route.

With this grim scenario in mind, the officials were disturbed to see that few of the controls in place for commercial airlines existed for private planes. And there was no radiological screening of such planes or their cargo, nor a security check of pilots. They proposed creating a constellation of screening points for small planes. Those approaching the U.S. from Europe and the Middle East would stop for refuelling and screening in Shannon, Ireland. Other screening points would be located in Bermuda and in Aruba. Seeking to preserve unfettered passage between Canada and the U.S. (and reasoning that once in North America it would be unlikely that a plane could pick up nuclear cargo in Canada), Rosenzweig, with then-DHS chief Michael Chertoff’s blessing, approached Canadian officials about participating. The Americans would provide the radiological equipment. Canada would supply a few customs agents to clear the flights for passage to Canada. The Irish, Bermudans and Arubans got the opportunity to sell champagne and Chanel to the jet-setters who passed through. “It was win-win-win all around,” he says.

The Canadian reaction was tepid, Rosenzweig says. Officials expressed interest, but ministers changed and no decisions were taken. Now, three years later, the facilities are being built without Canadian participation. Eventually, DHS will have to turn to the question of what to do about small plane flights from Canada, potentially throwing up yet another layer of security within North America.

Perhaps nothing embodies the difference in views as much as the passport rule that takes effect on June 1. From the Canadian perspective, Canada was blindsided by the new stipulation, under which adults entering the U.S. must produce a passport or “enhanced” document. It’s true that the WHTI (Western Hemisphere Travel Initiative) was stuck into a lengthy intelligence reform bill in 2004 without prior notice, also surprising many members of Congress from border states who, like officials at the Canadian Embassy, warned of disruptions to tourism, trade and the lifestyle of border communities. But perhaps it should not have come as such a surprise. The end of passport-free travel within North America was explicitly recommended on page 388 of the bipartisan 9/11 commission report that came out in July 2004. And at DHS, it was a no-brainer. The spectacle of border officials examining many different kinds of documents—from drivers’ licences to birth certificates and even baptismal documents—seemed to belong to an earlier, more innocent age.

But Canadian officials were concerned that the costs of outfitting American and Canadian families with passports would devastate cross-border tourism—and worried over what the potential confusion and confrontation over the new rule would do to wait times at the border. Michael Wilson, Canada’s ambassador, along with border state lawmakers, agitated hard to have the implementation deadline delayed until June 1. The sight of a Canadian ambassador aggressively lobbying against a rule change struck some at DHS as inappropriate—the kind of thing that would have raised howls of outrage if the situation had been reversed. The Americans also thought Canadians should have accepted the new reality much sooner and been more creative in finding a more workable solution, at the very least leaping on the idea of security-enhanced drivers’ licences such as those issued by B.C. and a handful of border states.

Although critics won a few concessions—including an exemption for children—there could still be more tension ahead as the rule comes into effect. Indeed, while DHS has long maintained it is ready to implement the new program, Canadian officials and others are not too confident of American readiness. New York Rep. Louise Slaughter predicts “pure chaos.” Van Loan says he hopes to see a “practical, flexible approach,” rather than a zero tolerance policy for anyone attempting to cross without a passport. “There are various things you can do—obviously not holding everyone to strict rules on June 1,” he says. “Use [the deadline] as an opportunity to educate travellers and use other information to convince yourself of their identity.”

Napolitano is expected to visit Canada on May 26-27, just days before the new passport requirement takes effect, making stops in Ottawa and at the Detroit-Windsor border crossing. When her appointment was first announced, it raised hopes among Canadian officials and business groups that a new era was arriving. Her predecessor, Chertoff, was a former judge who headed the criminal division of the Justice Department during 9/11. His law enforcement mentality was seen as a sea change from his predecessor, Tom Ridge, the former Pennsylvania governor. Where Ridge was seen as consultative and co-operative, Chertoff appeared to simply lay down the law. Napolitano seemed to be a hybrid of the two. Like Chertoff, she had been a prosecutor; like Ridge, she was a governor, in her case of Arizona, which shares a border with Mexico.

But Napolitano got off to a rough start. First, she ordered an “action directive” on the Canada-U.S. border. It was nothing more than a request for detailed information about a border with which she was not familiar, but it was spun into headlines suggesting she planned a new crackdown. Next, she gave an interview in which she seemed to suggest that she believed the 9/11 terrorists came from Canada. She then said she misspoke. (Van Loan insists the secretary was fully aware that the terrorists did not come from Canada because they had discussed it as an “urban myth” that they had to fight and blamed her comment on a leading question.) But later, Napolitano made headlines yet again at a conference on border policy at the Brookings Institution in Washington, referring to a political environment in which she is pressured to treat both the Canadian and Mexican borders with “some parity”—a comment that was misinterpreted as saying she herself saw them as equivalent.

Napolitano’s spokeswoman declined an interview request. Despite the tense beginning, Van Loan says that he and Napolitano have already made two breakthroughs. They have committed to meeting twice each year to discuss the border—outside of any other events that they may also attend. They have also committed to looking for ways to share resources and manage the border together. For example, a past pilot project that tried out joint U.S.-Canadian boat patrols of shared waterways could become permanent. “The high-level meeting mechanism will drive decisions on co-operative approaches to security and facilitating trade,” Van Loan says. “We didn’t have that kind of mechanism before and that I think is a very positive step.”

Nonetheless, there remains a huge gulf between how Canada and the U.S. treat people and goods coming into North America, one that will remain problematic regardless of how many meetings are held with the secretary of DHS. A big area of difference is refugee policy. There is a perception in Washington that Canadian asylum rules are too lax. But, although Canadian officials say they are not more permissive—each country admits roughly the same proportion of applicants—the big difference is what happens when they arrive. In the U.S., asylum seekers are routinely detained until their cases are decided. In Canada, they are rarely detained, and are allowed to work and receive benefits while their cases are handled. They are also given more opportunities to appeal deportation orders. An inspector general’s report in 2003 found that many of those found to be deportable disappear and are not removed from the country. (Ahmed Ressam, the would-be “millennium bomber,” captured crossing into the U.S. with explosives in 1999, was one such case.)

Ottawa has since tried to remedy this, but there is little interest in adopting the detention-heavy U.S. model, which is criticized by some human rights advocates. The two countries also differ on which countries enjoy visa-free travel status. Canada waives visas for more than 50 countries, including many Commonwealth nations, while the U.S. list had just 35 countries. Citizens of Mexico, Croatia and Greece, for example, can enter Canada, but not America, without visas. There is little expectation that the differences will be bridged. “I would say that they don’t have an appetite for synchronizing with us,” says Van Loan. “We do have countries with whom we have visa-free travel. We are not going to adopt the American [policy]. We are going to develop our policy with Canada’s national interests in mind.”

Another gap between the two nations is their approach to gathering information from people who intend to enter either country from abroad. The U.S. has invested a lot of money and manpower since 2001 in collecting information about travellers before they arrive in the U.S. On Jan. 12, the U.S. brought in a new program called ESTA (Electronic System for Travel Authorization), which requires people coming from countries that do not require visas, such as European Union nations, to fill out an electronic travel authorization 72 hours before coming to the U.S. Their names are then compared to suspected terrorist watch lists; only after they are cleared can they board a plane, and when the traveller lands, biometrics such as all 10 fingerprints are collected. Canada does not require pre-authorization for travellers, nor does it collect as much information about them, and it does not fingerprint at arrival. Canadian officials say that they are “looking at” copying the American system, but say it would require a large investment and would raise all kinds of legal and privacy issues, especially if the information was to be shared with the U.S.

In one potential bright spot, Van Loan says Napolitano made a written commitment to reopen talks about setting up pre-clearance facilities for commercial goods at the land border to move customs inspections away from the actual physical border to make the crossing more efficient. A major issue for Canadian and U.S. business groups, it was shuttered by the Bush administration in part because the two countries could not reach an agreement about whether U.S. officials operating on Canadian soil would have the authority to fingerprint people intending to enter the U.S. but then deciding to turn around and not cross. “We haven’t settled on a particular pilot project,” Van Loan says. “The Americans are open to looking at it where the Bush administration had closed the door.”

But while the negotiations fell apart over the issue of fingerprinting, the concerns at DHS go deeper. DHS lawyers worried about subjecting U.S. pre-clearance activities on Canadian soil to Canada’s Charter of Rights and Freedoms and unpredictable future judicial interpretations of it. For example, while the pre-clearance negotiations were going on, a B.C. provincial court judge ruled in 2007 that border guards in Canada would require a search warrant before opening a trunk. Although that was overturned, it greatly alarmed U.S. officials about subjecting their personnel to Canadian law. In addition, various lawsuits are under way in U.S. courts seeking to limit the powers of American border agents, and DHS does not want to be seen voluntarily giving up powers in Canada that it is arguing in U.S. courts are essential to its job. Napolitano will have to tackle such thorny issues if pre-clearance is to go ahead.

What’s left is incrementalism with no guiding vision for the future—but perhaps an opportunity to slowly rebuild some of the trust that eroded during the Bush era. And maybe even an agreement one day on small planes. “That is an interesting idea,” said Van Loan of the radiological screening post under construction in Ireland. “We are still examining it.”

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