By Paul Rosenzweig

The new DHS Deputy Secretary Jane Holl Lute’s first trip outside the country is to Canada this week.  That makes perfect sense:  Canada and Mexico are our two closest neighbors and for DHS as a border agency they are, manifestly, the two most important foreign countries to deal with.  Traditionally, the Deputy Secretary has taken a hands-on interest in the Canadian relationship and it appears that Deputy Secretary Lute will follow that tradition.

What makes little sense, however, is that she is travelling to Ottawa by way of Buffalo, New York today.  One can only hope this is not a sign of problematic things to come.

In recent years Canada (and Buffalo) have been pushing for a the US to implement a land preclearance pilot project, which would have relocated U.S. border inspection facility from the Buffalo, New York, side of the Peace Bridge linking the two countries to the Fort Erie, Ontario, side. All Customs and Border Protection inspections and operations would then take place on Canadian soil before travelers and cargo entered the United States. The Peace Bridge site was selected for the pilot because it is one of the busiest commercial crossings between the United States and Canada and also because several politically powerful Democrats (notably Rules Committee Chairman Representative Louise Slaughter and DSSC Chairman Senator Chuck Schumer) were pushing for it.

The Peace Bridge negotiations were an unwise idea when first conceived and are still unwise now.  The prior Administration, despite good intentions and extensive negotiations, ultimately rejected the proposal, and for good reason:  Issues relating to our sovereignty the law enforcement authorities of U.S. CBP officers operating on Canadian soil simply could not be resolved.   It would be a mistake if Deputy Secretary Lute’s visit to Buffalo meant that the Peace Bridge negotiations were being revived.

Ultimately, the overarching issue was the requirement that U.S. law enforcement personnel and authorities be subordinated to Canadian law, rather than follow U.S. law, as a result we were unable to ensure necessary U.S. law enforcement authorities could be exercised under Canada’s legal framework. But one of the guiding principles of shared border management that we outlined at the beginning of the negotiations was that the inspecting country’s operations would be have to be consistent with the constitutional and legal frameworks of the host country.  In the end we couldn’t square the circle — for shared border management to meet American security requirements, career officials at DHS and DOJ agreed that U.S. border inspection personnel and law enforcement personnel would require full legal authority, comparable to that provided under U.S. law, to replicate the inspection and enforcement activities DHS (through CBP and ICE) and DOJ (through the FBI and DEA) engage in today.

Let’s take just one of these many issues as an example.  Our Canadian colleagues forthrightly told us that to be consistent with Canadian host country law any American officers stationed on Canadian soil would be obliged to abide by the Canadian Charter of Rights.  And not just the Charter as it is construed today, but the Charter as it might be construed by Canadian courts in the future.

Now that, of course, is exactly how the law develops in America – the law enforcement authorities exercised by CBP at the border are subject to possible revision in the future if the US Supreme Court changes its interpretation of the Bill of Rights.  But there is a world of difference between subjecting American law enforcement authorities to oversight by American courts applying American law, and subjecting them to oversight by Canadian courts applying Canadian law.

For example, one lower court in Canada recently ruled that Canadian border authorities could not search inside the trunks of vehicles crossing the border without probable cause to believe that a crime was being committed.  That rule is, of course, completely inconsistent with American border search law, which permits the suspicionless inspection of vehicles and individuals at the border.  And that search authority is the cornerstone of our counternarcotic and counterterrorism efforts – without it, a gaping hole would be ripped in our security envelope.  Now, to be fair, the lower court’s ruling in Canada is unlikely to be upheld on appeal – but do we really want to outsource control of American security requirements to the Canadian courts.

Much needs to be done to facilitate commerce and travel between Canada and the United States.  Doing so with complete security can be accomplished through any number of means, including a treaty to allow American authorities to be exercised across the border.  But the land preclearance negotiations are a dangerous short cut that do not warrant revisiting.

Paul Rosenzweig, the founder of Red Branch Law & Consulting, PLLC, formerly served as Deputy Assistant Secretary for Policy and Acting Assistant Secretary for International Affairs at the Department of Homeland Security.