The United States and Canadian Border: An Attempt to Increase Bi-Lateral Cooperation for the Prevention of Transnational Crime

 

The geographic proximity of the United States and Canada allows both countries to take advantage, politically and economically, of cross-border trade relations, resulting in increased economic integration[i]. Due to the complexity of the integration, it is difficult to separate the particular investments of one country from the other[ii]. Therefore, in order to preserve and protect the economies and investments of both nations, there should be a focused concentration by both to strengthen relations and protect assets. In addition to strengthening the bilateral relationship, each nation should promote cooperation between their respective internal law enforcement agencies to prevent and deter transnational crime.

 

Within the United States, it is the job of the Department of Homeland Security (DHS) to secure and establish a firm boundary between countries in order to prevent illegal movement; this includes the illegal movement or smuggling of people, drugs, money, and weapons[iii]. The acting agency within DHS is the U.S. Customs and Boarder Protection (CBP). This agency currently states that they are “working to strengthen security on the southwest border to disrupt the drug, cash, and weapon smuggling that fuels cartel violence in Mexico….” Additionally, they “support smart security on the northern border and facilitate international travel and trade[iv]”. Due to the high level of economic integration between the United States and Canada, both countries need to maintain a semi-porous border with one another for ease of commerce[v]. In contrast, the border between Mexico and the United States has maintained its report of being a more militaristic and defensive border, in order to ensure that the South American drug cartel violence does not cross into the United States[vi]. Based on the semi-porous nature of the United States and Canadian border, it is an important point of entry to protect due to the possibility of the South American drug cartels’ ability to mobilize and gain access to the United States[vii]. Drug smuggling and other illegal international activities have the potential to generate vast amounts of wealth, some of which may be used for other means (i.e. terrorism). Based on the observed increase in transnational crime, it is imperative that law enforcement agencies diversify and cooperate transnationally. An increase in the dissemination of information among law enforcement entities of other allied nations will aid in an advanced effort to prevent the economic advantage of crime from supporting potential terrorist organizations.

 

The Jay Treaty established the border between Canada and the United States following the American Revolution, after a steady flow of trade across the border threatened U.S. establishments[viii]. By 1895, the United States stationed border patrol agents at the U.S.-Canadian border, however the U.S. Immigration Service under which these operatives performed their duties was not legislatively supported[ix]. Congress passed legislation in 1924 to establish the U.S. Border Patrol. Congress also passed the Immigration Act to establish a screening process at the border to distinguish between legitimate and fraudulent applications for entry into the country[x].

 

Prior to the establishment of the Border Patrol, the only legislation that had existed was the Canadian Agreement of 1904. The lack of supervision provided at the border enabled Canadians to be smuggled into the United States by way of Canadian shipping vessels and cargo holds. Through the oversight of these means, illegally smuggled Canadians could stay for indefinite amounts of time without proper documentation[xi]. The completion of the Great Northern Railway in 1903 exacerbated the oversight[xii]. Smith states that between 1903 and 1908 at least 300 immigrants, if not more, entered the United States each month from Canada via Gateway, Montana without proper inspection[xiii].

 

During World War II, the U.S.-Canadian border faced it first-ever greatest challenge: maintaining order and control throughout the processing of Asian immigrants[xiv]. Due to the war in Europe, many sought refuge overseas in both Canada and the United States. However, more refugees settled in Canada and later immigrated to the United States under heavy restrictions[xv]. It was the first and greatest number of immigrants that the border patrol had seen, and this remained so until the events of 9/11. Refugees again see Canada as a sanctuary. Most of the refugees have migrated from the Middle East[xvi] [xvii]. Because of the events of 9/11, both the United States and Canada have had to reorganize and redefine their border patrol operations.

 

Canada is the largest of twenty-one existing North American nations, with the longest coastline (243,042 kilometers) and territorial land boundary (8,893 kilometers)[xviii]. Prior to the events of 9/11, the border between Canada and the United States presented the longest undefended bi-national land boundary in the world[xix]. Post 9/11, the Department of Homeland Security (DHS) increased its border patrol efforts in order to prevent and deter terrorists from gaining access to the United States via the northern border[xx]. In order to ensure that political relations remained friendly, Mexico, Canada, and the United States formed the Security and Prosperity Partnership of North America (SPP) with the goal of strengthening national security and economic prosperity[xxi]. The three driving principles that supported SPP were: (1) the improvement on security from external threats, (2) strengthening internal security measures, and (3) increasing economic growth for the region[xxii].

 

Canada’s economy is capitalistic and highly integrated with the U.S. economy; therefore, Canada has a significant economic investment and interest in the security of the United States[xxiii]. Local businesses and non-government organizations that exist on both sides of the border are propelling and strengthening the economic interdependency of the two nations[xxiv]. These businesses see the benefits of cross-border trading and advertising as well as the utilization of dual citizenry to help aid in the strengthening of border relations.

 

Taylor, Robideaux and Jackson state that there are two long-term approaches to border security—one is to increase the amount of money invested in economic security, the other is to create an “external perimeter” that precedes the physical border[xxv]. It is reported that over 90 percent of Canada’s population lives at least within 200 kilometers of the United States’ border and a certain percentage of those commute transnationally either for work, commerce, or tourism[xxvi]. This means that employees and residents of bordering towns and cities who are commuting for either recreational or work purposes generate a heavy percentage of all daily trans-border traffic. In an effort to improve the traffic situation across the border and increase efficiency, Canada began developing border-crossing systems that enabled frequently crossing dual citizens and business owners the capability to transverse the border quickly[xxvii]. The implementation of such technologies such as the Peace Arch Crossing Entry (PACE), Canadian Passenger Accelerated Service System (CANPASS), and NEXUS has made border crossing more efficient by dividing individuals into “primary” and “secondary” traveling groups[xxviii]. Both PACE and CANPASS function as alternatives to traditional passports and operate similar to Fastrak passes that are utilized on US highways and toll roads.

 

Under the NEXUS system, any citizen of the United States or Canada may apply to either nation’s federal government for a NEXUS card. NEXUS cardholders may then cross between the two countries without a passport[xxix] [xxx]. In order to obtain a NEXUS card, an individual is obligated to provide personal and biometric information, which is then checked by United States and Canadian federal authorities against criminal records, no-fly lists, and known terrorist member databases[xxxi]. The implementation of the NEXUS system prescreens the portion of the population that wishes to cross the border rapidly for questionable activity[xxxii].

 

Taylor, Robideaux, and Jackson found that the United States spends between $4.4 and $6.4 million annually in brokerage fees, border duties, and customs administration[xxxiii]. Spark claims that creating an electronic system that can enable “primary” travelers to cross quickly, would keep the cost of law enforcement for border management at a minimum[xxxiv]. In addition, the American Criminal Justice System (ACJS) and Canadian Criminal Justice System (CCJS) coordinated to implement NEXUS thereby ensuring law enforcement agencies on both sides of the border may exchange information[xxxv].

 

While the utilization of smart borders to the north may decrease the overall economic cost of border functions, as well as the transnational crime rate, the initial startup cost of implementing, utilizing, and distributing sophisticated technological systems at the border is a major factor that has impeded its broader use[xxxvi]. In order for smart technology to be effective at the border, the technology must operate at an increased rate of speed to be able to process high volumes of goods and people crossing the border[xxxvii]. Additionally, such smart border systems must be able to operate without producing numerous false positives or delays in real time uploads[xxxviii].

 

The United States has been working on the implementation of the US Visitor and Immigration Status Indication Technology (US-VISIT)[xxxix]. This technology is capable of capturing electronic fingerprints, digital photos, and visa and passport information on all travelers that enter and exit the country[xl]. An organization known as US-VISIT works in conjunction with NEXUS and SENTRI to provide additional “filtering functions to hedge possible threats” and applies additional layers to U.S. national security[xli]. While the information provided by the smart border technology would be critical in the efforts to decrease transnational crime, a majority of the smart technology services are only currently available via airport points of entry[xlii].

 

David Kamien states, “the process of securing borders can never be complete, because the environment is too complex and the volume of activity is too great[xliii].” However, there is still a growing concern regarding the unregulated portions of the U.S. border including air, sea, and land[xliv]. There is continued concern that terrorists will model the behavior of drug smugglers and go for the path of least resistance, exploiting unregulated areas of the border in order to gain access to the country. Latin America is believed to be a potential recruiting ground for terrorist groups[xlv]. If the US Customs and Border Protection (CBP) does not more critically monitor the US-Canadian border, these groups may obtain access to the United States through the softer northern border, thereby sidestepping the heightened security measures of the border to the south[xlvi]. The greatest challenge to border control—that affects immigration and potentially places the country within harm—is the necessity of maintaining a semi-porous border to allow for the exportation and importation of goods, while still attempting to apprehend those who illegally enter the country to do harm[xlvii].

 

According to Kamien, Congress proposed the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR) to provide incentives to law enforcement agencies for their increased participation in removing illegal aliens[xlviii]. Politicians and scholars alike heralded the act as an advance in homeland security and as a necessary step in fighting against transnational crime. However, others felt that it would distract local law enforcement from their enforcement routines[xlix]. Based on the examination by Smith and his expertise in Canada’s international and immigration policy, Canada has a tradition of being a country of refuge[l]. “Canada’s asylum system is considered generous. Refugees seeking asylum often arrive with little or no documentation, or forged papers. They are allowed to enter Canadian society while their claims (which are infrequently rejected) are being adjudicated[li]”.

 

The high degree of economic integration between the United States and Canada has ensured that Canada protects its investment with the United States by enacting new policies. Recently, the Parliament of Canada enacted the Immigration and Refugee Protection Act (IRPA) to strengthen Canada’s border security strategy in order to prevent those believed to be involved in acts of terrorism from entering or residing in Canada[lii]. The IRPA allowed Canada to be able to arrest, detain, and remove non-citizens who were deemed on reasonable grounds to pose a threat to national security and the safety of the Canadian public[liii][liv].

 

There are three distinct targets of border enforcement: terrorism (including active terrorist members, their transnational networks, and supplies for committing their acts of violence), mass unauthorized migrations, and contraband (particularly of the psychotropic drug type)[lv]. Canada’s relations with the United States have not always been beneficiary to the commitment of these targets for both countries. Canada’s economic and political identification with the European Union is in part the source of strained relations between Canada and the United States[lvi]. A history rich in colonialism and mass European immigration has tied Canada to the European Union by allowing it to identify culturally with such countries as the United Kingdom and France. Because of the shared culture, Canada carries similar economic policies and holds similar political views to their brethren overseas.

 

Overall, there are twenty-seven members of the European Union, which has grown significantly in membership since its formal establishment on 14 June 1985[lvii]. Following the initial conception of the European Union, the associated member nations of the European Union signed the Schengen Agreement to provide opportunities for more free movement of persons throughout member nations. The Schengen Agreement was not originally a part of the overall European Agreement; however, the European Union placed the Schengen Agreement under the EU umbrella in 1997 at the EU Summit in Amsterdam[lviii]. Due to oceanic separation of the European continent and North America, the European Union and U.S. government have additional obstacles to work out in order to increase cooperation. Some of the more substantial obstacles are the dissemination of intelligence, law enforcement jurisdiction, decision making by the European Union, and the role of the private sector as a potential investor and acting guardian[lix]. The United States is frustrated with the slow response of the European Union to known transnational crime, especially crime resulting from increasing connections between organized crime groups and known terrorist organizations[lx].

 

Based on the close proximity of national borders between each member nation of the European Union and the high levels of commerce and tourism that cross the borders of each member nation daily, there has become a severe lack of national and regional jurisdiction regarding the sentencing and punishment of crime. In addition, the blurred borders have manifested as a lack of regional organization among law enforcement, further slowing the E.U. response to national incidents, thereby hindering its ability to make decisions and disseminate information among law enforcement agencies[lxi]. It is important to remain aware of the actions and capabilities of the European Union because of Canada’s strong favor of relating to its European forefathers. Based on the trends of the European Union, it may be possible to predict the current political state of U.S.-Canadian relations. Geo-political location and geo-economic relations between the United States and Canada have encouraged economic integration. Businesses that exist on either side of the border depend on a labor force that potentially exists on the opposite side. In order not to lose the potential workforce on both sides of the U.S.-Canadian border, and to ensure the workforce’s ease of mobility across the border, private business owners have cooperated with border patrol authorities and provided private funding for the development of new technology and training[lxii]. Through the influence of local businesses and economic integration there may be a greater likelihood to increase cooperation between criminal justice agencies of both countries.

 

In Canada’s effort to demonstrate its support of the United States and to protect its economic investments, “the government of Canada introduced a number of measures to prevent and intercept ‘irregular migrants’[lxiii]”. Border patrol is the first physically substantial law enforcement agency encountered by a potential terrorist or criminal, and yet, it is the last existing layer of defense before transitioning from the physical geography and jurisdiction of one country to another[lxiv]. This crucial fact demonstrates that border patrol has the most potential for international cooperation, not only for national security purposes but also for the absolution of transnational crimes[lxv].

 

Internationally, the potential for terrorist groups to use criminality as a method to fund their operations continues to be realized[lxvi]. Research conducted by the United States Department of Justice (US-DOJ) determined the most common crimes committed by international organized criminal and terrorist groups are:

·         Energy and strategic materials markets

·         Smuggling and trafficking of goods and people

·         Money laundering

·         Fraud

·         Cyber crime

·         Terrorist operations and foreign intelligence

 

Terrorists have discovered the benefits of having economic backing either from already established organized crime groups or by creating their own industries. This new basis of economic support could potentially make terrorism more dangerous, enabling groups to move away from state funded and politically motivated attacks to more personal and radicalized forms of violence that are more malicious and specifically targeted[lxvii].

 

After the events of 9/11, the United States focused internally on its threat to security[lxviii]. The United States’ relative geographical isolation from other countries enabled it to devote more resources to its national security and create supportive legislation in a relatively short amount of time[lxix]. The legislative act known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists Act (USA PATRIOT Act) expanded existing laws and provided law enforcement and other existing agencies with access to the necessary tools required to not only enforce the law but also further investigate suspected terrorists[lxx]. Pushed by its economic interdependence and investment in the United States, Canada enacted a 32-point Smart Border Declaration and Action Plan in 2001 that outlined a number of initiatives and provided for ongoing collaboration with the United States’ border patrol agencies[lxxi]. The goal of the plan was to identify security risks, while still promoting and enabling the free flow of trans-border trade[lxxii]. Andreas argues that post 9/11, the United States traded one war for another[lxxiii]. The goal of stopping illegal drug smuggling into the United States (the ‘war on drugs’) quickly changed. The new goal of the United States (post 9/11) would be to prevent potential terrorists from gaining access to the country via international borders (the ‘war on terror’). Keeping in mind that 87 percent of all Canadian trade is United States bound[lxxiv]; Canada did not want to jeopardize its economic opportunities or its political relations. Canada is the largest supplier of energy to the United States, composing 94 percent of all U.S. natural gas imports and an estimated 100 percent of electric imports for the northern Midwest[lxxv]. Andreas uses the analogy of scared mice next to a neurotic elephant in order to describe the resulting relationships between the United States, Canada, and Mexico, following the events of 9/11[lxxvi]. According to Andreas, both Canada and Mexico became scared mice next to the neurotic elephant (the United States)[lxxvii]. While the United States was concerned with preventing any future terrorist attacks, Canada and Mexico became more concerned about the United States’ reaction to terrorism than the actual act[lxxviii].

 

In Canada’s attempt to demonstrate and prove to be a part of the solution, Canada increased its security in the most visual areas (i.e. border security) and also established the Public Safety and Emergency Preparedness portfolio (also known as Public Safety Canada)[lxxix]. The Canadian government reallocated $176 million in funding to provide for the implementation of new border detection technologies and the employment of additional personnel[lxxx]. During this time, Canada also reorganized and established the Canada Border Services Agency (CBSA)[lxxxi]. The CBSA was composed of 13,000 public servants transferred from the Canada Customs and Revenue Agency (CCRA), Citizenship and Immigration Canada (CIC), and the Canadian Food Inspection Agency (CFIA)[lxxxii]. The CBSA was a step towards establishing the Canadian equivalent of the United States Department of Homeland Security (DHS). This new agency was different from any that Canada had previously established. CBSA officers received handguns and explicitly expanded policing powers[lxxxiii]. Meanwhile, the CBSA began screening all of its non-Canadian citizens with help from the Canadian Security Intelligence Service (CSIS) to distinguish and halt the likely threat already in existence within the country[lxxxiv].

 

Globalization and trade liberalization, in combination with the rapid expanse of technological capabilities, has aided in the perpetuation of diverse crimes that appear to operate in a borderless world[lxxxv]. The US-DOJ has established that crime is a substantive economic source for terrorist organization endeavors[lxxxvi]. Therefore, transnational cooperation amongst law enforcement is imperative. Unfortunately, due to the circumstance of international law and regional jurisdiction, the best place to begin exploring and expanding on transnational cooperation is at the national border. Considering the high economic integration of the United States and Canada, there is a significant investment in each other between these two nations, therefore more of a necessity to cooperate[lxxxvii].

 

Thomas Sanderson states that while most terrorist groups have yet to take part in organized criminal activities, and may never, others know of the economic advantage these would provide to their cause[lxxxviii]. Therefore, multiple federal law enforcement agencies have begun to observe a statistical increase in the committing of transnational crime. The United States understands that it will take cooperation with more than one country in order to deter transnational crime and therefore continue to win battles in its ‘war on terror.’ Based on the argument made by Kamien, both the U.S.-Canadian border and U.S.-Mexican border are critical components to national security[lxxxix]. “The nexus between terrorism and organized crime” has enabled “the widespread availability of small and light arms that can be both trafficked for money or used in operations[xc]”. If security along the U.S.-Canadian border is not increased, then those who remain determined but cannot gain access at the U.S.-Mexican border will go northward and gain access to the United States via Canada[xci].

 

Regardless of the cons to increasing the utilization of technology on the border, the speed of operating such tools is continuing to outpace the expectations of those in the field. It would be a detriment to both Canadian and U.S. security not to fully utilize all potential tools for protecting and securing the critical infrastructures of their respective countries. Those individuals who participate in the CANPASS, PACE, and NEXUS border crossing programs are those who have subjected themselves to pre-screening beforehand in order to obtain the proper documentation to cross the border (Winterdyk & Sundberg, 2010). Therefore, legally regarding national security, they have already subjected themselves to a search determining that they are not a threat.

 

Due to the necessity of maintaining a good reputation with multiple countries and respect for their customs, “liaisons between U.S. and foreign law enforcement officials have increased at almost every level…[and]…an increasing number of U.S. law enforcement agencies have been involved in proactive transnational crime investigations[xcii]”. However, even with assured help and the utilization of liaisons, the United States cannot overcome bureaucratic delays caused by legal and cultural obstacles of other countries[xciii]. Any violation “of the host country’s laws and customs can result in failure to accomplish short-term goals[xciv].” If U.S. law enforcement is going to apprehend and try criminals, the process of criminal extradition is very important. With regard to transnational crimes, the problem is concerning which country will imprison the criminal, and under whose law he or she should be tried[xcv]. Usually extradition treaties govern the international exchange of criminals; however, the consequence of a criminal violation being committed while attempting to transverse the border becomes an issue. The violator is most likely between both countries and therefore the act committed there may not be established legislation to cover the crime[xcvi].

 

Border security will continue to be at the forefront of American politics. Since the events of 9/11, the United States has made it a priority to protect its critical infrastructure and has increased the militarization of its border[xcvii]. Fortunately, due to the high degree of economic integration between such countries as the United States and Canada, there is optimism that the two nations will continue to work together in cooperation and improve border security, enabling it to become not only more efficient but also more effective.

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