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Geoffrey Hale Presentation to: Political Science 3270 Political Economy of Canada March 25, 2008

Managing Borders, Balancing Agendas: Security and Travel Facilitation along the US-Canada Border since 2001. Geoffrey Hale Presentation to: Political Science 3270 Political Economy of Canada March 25, 2008. Outline. Bi-national Policy Relations and the U.S.-Canada Border

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Geoffrey Hale Presentation to: Political Science 3270 Political Economy of Canada March 25, 2008

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  1. Managing Borders, Balancing Agendas: Security and Travel Facilitation along the US-Canada Border since 2001 Geoffrey Hale Presentation to: Political Science 3270 Political Economy of Canada March 25, 2008

  2. Outline • Bi-national Policy Relations and the U.S.-Canada Border • Adapting to Congressional policy shifts since 9/11 • Security Discourses • Economic Discourse • Legal / Policy Issues and “Managerial” Discourses • The Driver’s Licence Option: U.S. perspectives • The Driver’s Licence Option: Canadian perspectives • Current Status and Ongoing Issues

  3. Bi-national Policy Relations and the U.S.-Canada Border • NAFTA countries (pre-9/11) characterized by growing integration combined with very limited institutionalization of shared border management, strong emphasis on preservation of national sovereignty, identities in all three countries. • Pre-9/11 – “Shared Border” – limited progress in micro-policy initiatives to remove administrative barriers, coordinate policies • Offset by limited security focus, emphasis in both Canada, U.S. on increased border facilitation with limited exceptions • Post-9/11 – Strong incentives for institutional cooperation (Smart Border Accord) BUT • Border issues increasingly treated as subsets of U.S. domestic policies, with limited regard for international dimensions • Dispersed policy functions, non-linear decision-making overlap with interest group and bureaucratic politics in both countries.

  4. Bi-national Policy Relations and the U.S.-Canada Border: The Policy Problem • Canada • How to reconcile post-9/11 U.S. security imperatives with continued facilitation of trade and travel critical to Canada’s economic security. • How to minimize likelihood of new terrorist attack from Canada, build trust at policy and operational levels necessary to limit further hardening, possible closure of border. • United States • Minimize likelihood of new terrorist attack, other border related problems (criminal / illegal migration) while facilitating “low risk” trade and travel • Managing multiple political agendas characterized by competitive domestic insecurities, political opportunism.

  5. “9/11” and the Border • Successful bilateral efforts at border management • Smart Border Accord – 32 point plan • Close political, operational cooperation among multiple agencies • High level policy coordination (Manley-Ridge) centered in Foreign Affairs, White House • Bush Administration pursues wide range of security initiatives – multilateral (WCO, IMO, ICAO), bilateral, and unilateral, BUT • Security Trumps Trade • Competitive exploitation of security concerns in context of U.S. domestic politics (rhetoric vs. policy)

  6. “Fragmegration”, Security and the Border – Four sets of dynamics Central State-to-State | Centralization Unilateral action Negotiations | (Executive / Congressional) * Smart Border Accord (2001) | * WHTI (2004) * Container Security Initiative | * REAL-ID (2005) * Trusted Traveler Programs | * CFIUS / Dubai Ports World (2006) * “soft” law (MOAs/MOUs) | * “hard law” <-------------------------------------------------------------------------------------------- Bridging / Facilitation | Hardening / Restriction * “soft” law (AAMVA) | * “hard law” * NGA / CSG / PNWER | * Immigration sanctions * WA State / BC EDL (2006-08) | * COOL (State) etc. Cross-border cooperation | State-level restrictions of State/Provincial governments | on migration / societal actors | Decentralization / product standards

  7. U.S. Border Legislation • Immigration and Naturalization Act (1952 +) • Western Hemisphere Travel Initiative (Dec. 2004) • Part of much larger Intelligence Reform and Terrorism Prevention Act (IRTPA) • Removes traditional passport exemption for U.S. citizens, Canadians, Mexicans etc. (re-)entering U.S. • Complement introduction of “entry-exit” system (US VISIT) recommended by 9/11 Commission, 1996 IIRTPA legislation. • Integrated with new international, security-driven passport standards negotiated through ICAO (“soft” law as projection of U.S. domestic, international security policies) • Initial application: Air: Jan. 07; Land/Sea: Jan. 08

  8. U.S. Border Legislation II • REAL-ID Act (May. 2005) • Imposed tighter admin. security requirements on states, individuals seeking driver’s licenses acceptable for use as IDs in entering federal, federally-regulated facilities (incl. airports, banks) • Intended to address problems of identity theft, fake IDs, collateral issues related to illegal immigration. • Major federalism issues (state sovereignty, unfunded mandate to states: $ 11 bn.  14 bn. + costs to individuals) • Implementation notionally “voluntary” but with significant sanctions. • Introduced as “tack” to broader Iraq War appropriations bill (Sensenbrenner – Hunter) limiting effective Congressional scrutiny. • Later challenged on civil liberties, privacy, libertarian grounds.

  9. Canadian Responses to Border Legislation • Initial responses recall efforts to change “Section 110” requiring passports at border in late 1990s • Focus on economic impact / border disruption • Seek U.S. domestic allies to modify Congressional process by identifying “alternative ID” allowed under legislation, BUT • Poorly calibrated in post-9/11 political / security environment • Internal divisions within Canadian federal government (2005) • Foreign Affairs – “wait and see”, “play for time” • PSEPC / CBSA – “come up with well-developed alternative proposal … Smart Borders style … to achieve US objectives with limited border disruption” • Policy distractions due to minority government, preoccupation with disputes over softwood lumber, Iraq, BMD, etc.

  10. Security, Trade, Travel and the Border Competing Discourses • “Integrative” / “Pushing out the border” • Effort to reconcile security, interdependence • Risk management emphasis, integrating business, economics, and systems perspectives • Accommodate “just-in-time” inventory systems used in cross-border trade • “Facilitating the haystack … finding the needle” • Multi-layered security systems, integrated with incentives to high volume, low risk trade and travel (CSI, C-TPAT, FAST) • Dominant perspectives at DHS senior policy levels, CBSA

  11. Security, Trade, Travel and the Border Competing Discourses II • “Security First” / “Frontier Security” • Unilateralist / sovereignty driven • Risk avoidance  “Security trumps trade” • “Never again” + “Blame avoidance” • Reinforced by GAO reports, media stories about “broken / porous borders” • Law enforcement orientation (command-and-control) • Reflects bureaucratic culture of Customs and Border Protection (CBP) • Reflected in agendas of Congressional security “hawks” (Sensenbrenner, etc.) • Emphasis on border control • “Why should Canada be treated differently than Mexico?”

  12. Economic Discourses • Macro / Sectoral Perspectives • Playing “catch up” with legislative fait accompli • Extensive cross-border supply chains in many industries – risk of serious border delays in absence of effective management strategy, timely traveler response • Limited political traction in U.S. given broader security focus, micro nature of WHTI issues. • Cross-border policy echo derived mainly from border area Chambers of Commerce (WA, MI, NY) • Congress, State-level policy-makers distracted by much higher profile disputes over immigration policies, REAL-ID.

  13. Legal / Policy Discourses Focus on Process • “Security First” Discourse -- “The law is the law.” • “Passports are the law; it’s going to happen; get over it” • “Can’t ask border officers to validate 8,000 forms of ID” • “Integrationist” Discourse – Focus on feasibility / flexibility • We are responding to congressional law. . . . is there flexibility in the law, basically? Yes, I think that if Congress decides there needs to be flexibility, there will flexibility. (George W. Bush, July 2006) • “Ensure security without disrupting trade and travel”  adapt law and deadlines to achieve functional objectives. Law requires: • “a passport, other document, or combination of documents, that are deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship. • Internal turf war (Dept. of State vs. DHS) over control of passports, “acceptable ID” • Procedural checks and balances on major regulations (> $ 100 mm.) • Executive Order 12866 – Mandate Cost-Benefit Analysis / Consultation • S.B. Reg. Enforcement Fairness – mandatory Congressional review.

  14. Managerial Discourses • “Getting It Right” • Policy debates address capacity for effective implementation without significant disruption • Technologies (e.g. RFID), systems / processes, personnel, border infrastructure, communications • Key to Canadian government response after Jan. 2006 • Can’t challenge U.S. law governing U.S. citizens without appearance of interference in U.S. domestic policy processes, indifference to U.S. security concerns. • Can address issues of practical implementation (rhetoric vs. reality) along shared border. • Seeks to maintain domestic policy discretion (e.g. avoidance of ‘national ID’ card, perception that domestic politics dictated by US) • Organized echo from parallel U.S. interests key to effectiveness.

  15. Other Societal Responses • Search for alternative responses: “can’t beat something with nothing” • Initial proposal for REAL-ID style driver’s license as acceptable alternative receives cool reception (BESTT Coalition: WA / MI / NY) • State vs. DHS turf war over control of ID issuance, standards, validation • Growing hostility to REAL-ID among states (money, jurisdiction) • Limited engagement of other business groups • Cdn. government non-committal; provinces supportive.

  16. Exploiting “Fragmegration” • Two-track strategy (DFAIT + BESTT, et al) • Recruit Congressional allies to delay implementation, mandate selected exemptions, conditions for implementation • Key recruits: • Coleman (R-MN) – Dorgan (D-ND) – Collins (R-ME) amendment to 2006 Immigration Bill  passed May 2006 but ultimately gridlocked • Stevens (R-AK) – Leahy (D-VT) amendment to 2006 DHS Appropriations Bill imposing delays, conditions. (passed Oct. 2006) • Slaughter (D-NY) pressure on DHS for adoption of EDL pilot  reinforced by position as incoming chair of House Rules Committee after 2006 Congressional Elections. • Policy windows • Episodic: debate over immigration bills • Annual: DHS appropriations bill

  17. Exploiting “Fragmegration” • Two-track Strategy • Persuade states to adopt “Enhanced Driver’s Licenses” without getting entangled in REAL-ID debate • Key initiative: WA-BC agreement to explore EDL (June 2006) • Driven by cross-border tourism strategy related to 2010 Olympics • Political champion: Governor Christine Gregoire (D-WA) • GofC support from Public Safety Minister Stockwell Day • Amplified by regional / inter-state / cross-border networks • PNWER (July 2006) • National Governors Association (Feb. 2007) • BUT – state processes, actors vary widely. • Administrative leadership of WA State DOL • Bureaucratic champion: identify roadblocks, viable system designs, union buy-in -- key concepts: “voluntary”, “new positions” • Mobilize support of WA State Congressional delegation • Secure legislative approval, appropriations independent of REAL-ID • Negotiate DHS acceptance of “pilot project”: announced March 2007

  18. Managing a Three (?) -Track Process • Regulatory Process • Multi-stage process • Air (2006 – Implementation: Jan. 2007) • Land / Sea (2007 – Implementation: 2008??, 2009??) – 75% of traffic  NPRM: June 2007 • Administrative Processes • Massive disruption of US (and Canadian) Passport offices at start of 2007 summer travel season • Validates “managerial discourse” • Triggers bipartisan support for delay, EDLs tied to 2007 DHS Appropriations Bill.

  19. Managing a Three (?) -Track Process • DHS / State Collaboration • WA pilot project: key to providing template to other states • New NY governor (Jan. 2007) shifts local focus • Announcements by Arizona (Aug. 2007), Vermont (Sept. 2007), New York (Oct. 2007)  MOAs with DHS for EDLs (varying integration with REAL-ID) • Michigan in wings [divided government, fiscal problems] • Canadian Provinces • BC – WA collaboration • Ontario – NY collaboration • Chertoff acceptance of EDL as core ID, openness to “cooperation with Canadian provinces” (Nov. 2007) • Limited discussions between provinces, GofC.

  20. Implementing EDLs in Canada • Optional process facilitated by: • Federal-provincial platform (Statscan / prov. registry offices) for sharing vital statistics data • Provinces’ existing participation in AAMVA • Reciprocal agreements for “one driver, one licence” • Introduction of advanced security features, anti-fraud measures by some provinces (esp. BC, AB, ON) • Shared supplier of new “high tech” licences (Digimark) • Bilateral cooperation with US states (BC-WA, ON-NY, MB-MN)

  21. Implementing EDL in Canada – Unresolved issues • Verification of U.S. security provisions • Federal government must establish IT platform capable of confirming Canadian citizenship data, relaying information to DHS with appropriate access controls • Training of personnel in participating provinces, CBSA, DHS • Roll out of EDLs – focus on border communities (cannibalizing resources for “trusted traveler” programs?) • Public trust / security issues with RFID chips in licences • Funding issues  will Ottawa subsidize start-up costs of enhanced provincial systems? How much? (ON)

  22. Conclusion / Lessons • Cross-border issues “small parts of broader US domestic policy processes” • Checks and balances lend themselves to coalition-building, collaboration with key Congressional patrons, policy entrepreneurs empowered by fragmented Committee system, assorted policy windows • Multi-departmental, jurisdictional issues lend themselves to flexible “soft-law” approaches capable of accommodating multiple interests • Projection of Canadian interests in US depends on cultivation of complementary U.S. domestic interests • Tactical flexibility vital to navigating multi-dimensional character of interest group politics. • Managerial competence vital to design of effective systems, co-opting / accommodation of competing interests with potential to exercise / activate veto points in legislative/bureaucratic process.

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