Tuesday, March 31, 2015

Sovereignty concerns may scuttle the new Canada/USA preclearance agreement

Last month US Secretary of Homeland Security Jeh Johnson and Canadian Minister of Public Safety and Emergency Preparedness Steven Blaney signed the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of the United States of America and the Government of Canada (“the Agreement”).

The Agreement would allow for the immigration, customs and agriculture inspections required for entry to the US to occur in Canada and vice versa. It is billed as a cornerstone of the Beyond the Border Agreement that will reduce congestion and delays at the border and increase efficiency and predictability in cross-border travel, tourism and transportation.

Upon announcement of the Agreement, dozens of cross-border organizations issued rushed press releases, all praising the Agreement with many implying that they had played a crucial part in achieving the Agreement’s acceptance by the US and Canadian governments.

But the gains envisioned by the Agreement may well be illusory as both Canada and the US must enact sweeping legislation for it to be become operational. For the US part, the Agreement contemplates that Congress pass The Civilian Extraterritorial Jurisdiction Act (CEJA), a bill that has little chance of becoming law.

 - Jurisdictional no man's land -

At present, the US lacks jurisdiction to prosecute its civilian contractors and employees for a variety crimes committed beyond its physical boundaries. The Blackwater trial, in which four Blackwater guards under contract to the US government killed unarmed civilians in Iraq (an FBI report concluded that at least fourteen of the seventeen Iraqis killed in Baghdad’s Nisour Square by Blackwater personnel on September 16, 2007, were killed for no justifiable reason), brought this jurisdictional no-man’s land to light. CEJA would remedy this situation by explicitly extending US jurisdiction to specifically designated extraterritorial crimes committed abroad by US civilian contractors and employees.

CEJA was first introduced in Congress in 2007 with the latest version introduced in the last Congress, but none have become law. A CEJA bill has yet to be introduced in the current Congress, however it may be DOA; a right-leaning contingent of Congressional leaders opposes its passage. In a nutshell, the concern is that CEJA would put too many restraints on US intelligence agencies engaged in covert undertakings requiring illegal activity abroad.

While the Department of Homeland Security explicitly calls for US passage of CEJA or similar legislation, it is oddly silent about the specifics of legislation Canada must pass for the Agreement to become law. Sooner or later, the other shoe will drop - if the US is to assert jurisdiction over crimes committed by its Preclearance employees stationed in Canada, Canada must also exempt those employees from many of its own criminal laws. A Canadian government website hints at this when it states: “Generally speaking, the inspecting party would have primary jurisdiction over its Preclearance officers for offenses committed in the performance of official duties.”

Thus, among other demands on Canadian sovereignty, the Agreement contemplates the civilian equivalent of a military Status of Forces Agreement (SOFA) wherein a country cedes jurisdiction over foreign military forces stationed there to the country deploying the military forces. The US insists on a SOFA being in effect before stationing US troops abroad, be it in Afghanistan, Japan, South Korea or other countries, and it appears it will require similar treatment for Preclearance personnel stationed in Canada. While the explicit terms of the Agreement purport to exempt US Preclearance personnel from Canadian laws aimed specifically at law enforcement personnel by stipulating such Preclearance personnel will not be deemed law enforcement officers, it may take an act of Parliament to exempt US Preclearance personnel from Canadian laws by approving the civilian equivalent of a SOFA for US Preclearance personnel stationed in Canada.

These yet-to-be-addressed sovereignty concerns may well scuttle the Agreement, sending hopes of expanded US/Canada Preclearance operations back to the drawing board.

The cross-border community deserves better from the Beyond the Border process. Neither DC nor Ottawa have advised why CEJA and a related SOFA have become mandatory pre-requisites for the Agreement, nor have they been clear regarding other contemplated changes of law necessary to achieve widespread border Preclearance. One of the announced goals of the Beyond the Border dialogue is to bring more transparency to cross-border processes; meanwhile, its mediators remain tied to opaque negotiations.