Wednesday, April 23, 2014

Feds’ Searches Of Private Planes Don’t Fly With Pilots, Lawmakers

Amid an uptick in searches of private aircraft, lawmakers and an association of aircraft owners and pilots see an overreach on the part of Customs and Border Protection.

By Matthew Heller | April 23, 2014

LOS ANGELES — When real estate investment banker Gabriel Silverstein landed his Cirrus SR22 single-engine general aviation aircraft for a fuel stop at the Iowa City Municipal Airport last May, he was greeted with a scene like something out of “Miami Vice.”

More than half a dozen local law enforcement officers and federal agents in tan jumpsuits told him he had no choice but to submit to a search of his plane, according to an account he gave to the Aircraft Owners and Pilots Association. The handler of a drug-sniffing dog, he recalled, “informed me that the dog was inspecting the plane and … that I had to open the cargo door.”

For about two hours, Silverstein, who was heading back to New Jersey after a cross-country trip to California, stood by as the plane was searched, the contents of his luggage spread on the runway. The only thing the K9 paid any attention to was a box containing oil and de-icing fluid.

“I was very angry,” Silverstein told MintPress News in an interview. “I really felt violated as an American citizen on American soil who is suddenly put under a police state, 1940s thing.”

He later identified the federal agents’ uniform insignia from a photo on the Department of Homeland Security’s website that shows a staffer of Customs and Border Protection’s Air and Marine Operations Center. And he and the AOPA now believe he is one of at least 50 private pilots to have been wrongfully targeted in the past year or so for a “zero suspicion” search as part of America’s ever-expanding domestic surveillance network.

From an air reserve base in Riverside, Calif., the center operates the Air and Marine Operations Surveillance System, which uses extensive radar networks to electronically monitor thousands of private domestic aircraft flights in real time.

Customs and Border Protection says the program helps in the war on drugs and in the post-9/11 efforts to protect national security. According to the Los Angeles Times, it has investigated 1,375 flights during the three years and five months ending in February, of which authorities intercepted 212 at airports and made 39 drug-related arrests.

In an August letter to the AOPA, the acting commissioner of the customs agency said agents are exercising their authority to inspect a pilot’s operating certificate and, in the course of conducting such an inspection, “facts may arise meriting further investigation or search to the extent authorized under the Constitution and federal law.”

But the association, which represents nearly 400,000 pilots nationwide, and some lawmakers say Customs and Border Protection is “piggybacking” on the authority of the Federal Aviation Administration and has failed to provide a convincing rationale for subjecting general aviation pilots like Silverstein to what can be harrowing searches.

“Our members are very concerned about an agency that is overstepping their bounds in an obvious abuse of power,” the association’s spokesperson Katie Pribyl told MintPress.

Rep. Sam Graves of Missouri has called for the DHS’s internal watchdog to investigate the program, noting that “[t]o my knowledge, none of these searches have produced evidence of criminal activity by these pilots.”

“Are the reasons for singling out certain flights for further inspection consistent with the principles of reasonable suspicion, probably [sic] cause and other provisions of the Fourth Amendment?” he asked the DHS in September.

“We’re going to search your plane”

At the U.S. borders with Mexico and Canada, where Customs and Border Protection conducts most of its operations, a warrant is not required for a search. But through the Air and Marine Operations Surveillance System, the agency has apparently been performing warrantless searches on private planes deep in the country’s interior.

The interception process starts with Air and Marine Operations Center staffers at the March Air Reserve Base who, using data from 700 radar installations in the U.S. and neighboring countries, can track up to 50,000 aircraft and ships at any time. When the center detects what is believed to be a suspicious flight, agents are directed to meet the plane on the runway at its next stop.

According to the AOPA, such searches have been going on since 9/11 but there has been a significant spike over the past year or so. Pilots have reported being tailed by military helicopters and surrounded by armed agents upon landing, being confronted at gunpoint by authorities wearing SWAT gear, and having their planes taken apart by officers who were not trained mechanics.

“AOPA doesn’t object to law enforcement officers stopping and searching general aviation aircraft when they have a legitimate reason to do so — in other words, probable cause or reasonable suspicion of illegal activity,” Pribyl said. “But it’s our position that federal law enforcement officers have absolutely no authority to stop [general aviation] aircraft without meeting that legal standard.”

Silverstein uses his plane in part to inspect real estate in remote areas of the country that are not serviced by commercial flights. “There’s nothing in my life that could possibly be cause for [Customs and Border Protection] to do anything,” he said.

On May 1, 2013, he and his partner were subjected to a “ramp check” of their aviation paperwork during a fuel stop in Hobart, Okla. Two agents in tan jumpsuits conducted the inspection, which he thought was “weird” because ramp checks are usually done by FAA personnel.

Four days later, Silverstein was in the service center of the airport in Iowa City filing his next flight plan when local police and Customs and Border Protection agents “descended upon us.” Outside on the runway, the drug-detecting dog was already being walked around his aircraft.

“We’re going to search your plane,” he recalled one of the agents telling him. “We’re doing this whether you want us to or not. You can either stand back quietly or sit in the back of a police car handcuffed.”

During the search, Silverstein said, the officers “ripped the plane apart, they were taking panels off the plane” and removed “every single thing from every single bag.” After the lengthy delay, he resumed his journey to New Jersey but “every time something rattled, I was questioning, ‘Did I really put all the panels back?’”

The search turned up nothing illegal. “I gave four-and-a-half hours advance warning” of the stop at Iowa City, Silverstein recalled. “If I was trying to hide something, I must be the dumbest person in the world trying to do it.”

“Cure looking for a disease”

AOPA had been concerned about some previous Customs and Border Protection searches of private planes, but it was the search of Silverstein’s plane — for which, he says, there was no “legitimate reason” — that apparently got the association’s attention.

“[W]e would like a full explanation regarding the legal basis for [Customs and Border Protection] to stop and detain aircraft and conduct searches well within the borders of the United States on activities with no apparent connection whatsoever [to] a border crossing,” the association’s General Counsel Ken Mead wrote to acting Customs and Border Protection Commissioner Thomas Winkowski last June.

In his response two months later, Winkowski said Customs and Border Protection agents had authority under federal aviation regulations and the federal aircraft registration statute to “inspect a pilot’s operating certificate and related aircraft documents.” If further investigation is deemed necessary, he wrote, agents can conduct a “mobile conveyance search based on probable cause that contraband or evidence is on board the aircraft.”

AOPA was far from satisfied with that explanation. “I thought it was a ‘kiss off’ letter,” Mead said in a broadcast of the association’s online news show. “When a law enforcement official stops you, [they are] supposed to have reasonable suspicion or probable cause. They don’t even address that. It’s like you can make these indiscriminate stops without cause.”

In September, Rep. Graves, a pilot and co-chair of the House General Aviation Caucus, asked Customs and Border Protection’s inspector general for a full investigation. But both he and Sen. Pat Roberts of Kansas have complained of being stonewalled.

Roberts, another champion of general aviation, told AOPA’s news show he had received a spreadsheet from the agency detailing the number of searches and where they occurred. But, he said, “I still want to know why the pilots were stopped in the first place.”

Noting that Congress controls the agency’s budget, he threatened to use “all the available tools at my disposal if we do not see a serious change in the way [Customs and Border Protection] treats our nation’s general aviation pilots.”

Pribyl told MintPress that the association’s officials are scheduled to meet with the agency “but it is possible that the whole thing may have gone too far to be resolved with simple discussions and legislative solutions may be needed. As a result, AOPA is also working with several committees in the House to stop these abuses.”

Some pilots have called on the association to file a class-action lawsuit seeking a court injunction, but Pribyl said only that it “would consider taking legal action if we felt it was required.”

As for Silverstein, he believes Customs and Border Protection’s aircraft interdiction program is “a cure looking for a disease. They’re trying to justify why they’re getting millions of dollars [in funding] … when there’s nothing to suggest they’re solving an actual problem.”

“I want it to stop,” he added, “not just because I don’t want [to] go through this again myself but because it’s not helping anybody … It doesn’t do anything for the safety and security of this nation.”

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