A U.S. senator is joining a fight against Department of Homeland Security agents who have been harassing small-time aviators who fly from one U.S. city to another without ever venturing near an international border.
Documented abuses include tracking pilots with military jets, detaining them at small airports for hours and searching their planes without a warrant.
The searches typically are conducted by armed agents with the U.S. Customs and Border Patrol, but the TSA and even local police SWAT teams working under DHS orders also have been involved.
Sen. James Inhofe, R-Okla., author of the original Pilot’s Bill of Rights in 2012, posted a draft of a proposed bill to his website June 30 that would update that law with new protections against overzealous law-enforcement agencies.
The Aircraft Owners and Pilots Association has documented more than 50 cases of abuse, including heavily armed SWAT units conducting secret raids against independent pilots flying small planes from one city to another well within the nation’s interior.
Inhofe, a pilot and certified instructor with more than 11,000 hours of flight time, said he is working with the AOPA to solve the problem by updating the Pilot’s Bill of Rights, which was signed into law by President Obama in August 2012.
“This wasn’t even an issue in 2012, that we knew of,” said Ken Mead, general counsel for the APOA, which is based in Frederick, Maryland.
Of the 50 cases documented by the AOPA, Mead said not one resulted in an arrest.
“If someone has a planeload full of drugs we’re all for that. Go after them,” Mead told WND. “But you can’t just randomly stop someone. You have to have reasonable suspicion of a crime to stop someone and then you need probable cause to get a search warrant.”
But that’s not what happened in October 2012, when the association received the first call from a pilot, clearly shaken by his experience with Border Patrol.
“When that first pilot called in and told us what happened we looked at ourselves and asked, ‘Is this guy even telling the truth?’ Because it sounded so bizarre, cops surrounding his plane with dogs and ordering him out of the cockpit,” Mead said.
Then other reports started to trickle in that were just as disturbing.
“We started getting very isolated reports at first so you didn’t know what to make of them,” Mead said. “People would be landing and there would sometimes be a government plane coming in behind them, and other times no plane would follow behind them, but they would be surrounded on the ground by police from all kinds of agencies, they would jump out of their SUVs with full body armor on, guns drawn, they approach the pilot, who at this point is scared to death, and they start asking questions.”
The AOPA soon realized that these were not isolated incidents. Something new was happening; a new policy was clearly put in place treating independent pilots with suspicion even if they were law-abiding citizens playing by all of the federal rules.
Craig Spence, vice president of operations and international affairs for AOPA, said once the organization started seeking out information from its members, it discovered that the random raids began around 2005 or 2006. They were rare at first but started increasing in frequency in 2012.
After his initial investigation for AOPA, Spence discovered 45 member pilots had been targeted for the aggressive government searches, with the majority occurring after January 2012. The group started filing Freedom of Information requests to find out what was going on. The federal agencies were very uncooperative, stalling for up to six months and then responding with very little information that Spence said was vague and heavily redacted.
But local law enforcement agencies doing the bidding of the DHS were more cooperative.
“What we found was that about 76 percent of these searches were done but SWAT units of predominantly local law enforcement upon the request by Border Patrol,” Spence said. “In one incident there was a total of 40 officers and 26 vehicles responding, all for a four-seater plane about the size of a Honda Civic.”
In another case, a man was flying en route to a Florida vacation with his family and he was met on the ground by a SWAT team.
“They ordered his kids out and surrounded them with dogs,” Mead said.
In most of the FOIA requests filed with local law enforcement agencies, the local sheriffs and police chiefs said they received a call from Customs and Border Patrol, which operates under Homeland Security, requesting assistance in searching an aircraft.
“They said they were acting on a request from Homeland Security and not knowing what they are up against,” Spence said. “Is it excessive? Yes. Is it egregious? Yes.”
The DHS did not immediately respond to WND requests for comment.
The AOPA, which has 400,000 members, realized it was facing a serious threat to pilots’ freedom to fly. It aggressively started lobbying Congress and the Obama administration for changes.
Inhofe, a veteran pilot, was quick to respond. The jury is still out on the administration. Gil Kerlikowske took over as the new commissioner of Customs and Border Patrol about four months ago and met with AOPA officials on April 30. Spence said he agreed to conduct a “top-down review” of the program. He’s agreed to hold off on any further raids until the study is completed, according to the AOPA’s assessment of the meeting.
“It was scaring the dickens out of our people and we felt it was intimidating and interfering with their freedom to fly, so we made a big deal out of it,” Mead said. “Under the new pilot Bill of Rights we have under consideration a provision that simply stated that you cannot stop these aircraft and sometimes detain people unless you have reasonable suspicion that a crime has been committed.”
The agencies conducting the searches typically give no reason to the pilot as to why the plane is being targeted.
Richard Rosenthal, a New York pilot and a civil rights attorney, said the legislation proposed by Inhofe is long overdue as the problem has been festering for years.
“They descend like a SWAT team, 15 to 20 agents, often from multiple agencies, and the waste of assets is remarkable, from all of the manpower to the F-16s and all the fuel they burn,” Rosenthal said. “It’s illegal, it’s a violation of civil rights, you’re not authorized to make the stop, you have no probable cause to make the search and it violates the Constitution.”
He said Border Patrol has claimed the right to conduct these searches and that they are lawfully conducted either with warrants or after consent is given to search without a warrant. But when agents approach with guns drawn, your inclination as a pilot is to give “consent” to whatever they ask, Rosenthal said.
“It’s intimidation. They detain the people and, realistically, 20 federal agents coming with guns drawn and saying we want to search your plane is not exactly a voluntary request,” Rosenthal said. “There is no search warrant, and in some cases there is no probable cause.”
Rosenthal said the raids have largely targeted small planes that fly between small airports.
“You can fly for hours in the Midwest without talking to anybody, literally. You’re not near major airports. They’re targeting, from my understanding, pleasure planes. Pilots who didn’t talk to anybody, didn’t file a flight plan, because there’s no requirement to. I just get in my plane and go, so the government says we’re going to stop and search you. The only thing is there is no legal basis for it. These are pilots who were not violating any laws or doing anything they weren’t supposed to be doing. They got in their planes and flew.”
None of the 50 cases documented by AOPA from 2006 through early 2014 resulted in any arrests. But the Border Patrol told the AOPA that in the most recent one-year period it stopped 12 planes for searches and found evidence of laws being violated in four of those 12 cases. It provided no documents to prove those arrests nor did it say exactly what the charges were for.
Even if the charges were legitimate, four out of 12 is still not a very good record for a program based on dubious constitutional principles, in Rosenthal’s opinion.
“If they made 50 stops and in 48 of them they found major amounts of drugs and contraband, maybe you ask is there a way to do this legally, but to waste hundreds of thousands of dollars and find nothing, but hey, we trashed the Constitution, that is not a record I would be proud of,” he said.
He said ultimately Obama is responsible for what has become an abusive program, even though it was started under the former Republican administration of George W. Bush. Obama came in as a constitutional lawyer promising to clean up the abuses that occurred under Bush, but instead he expanded them.
“Bottom line is, the buck stops there,” Rosenthal said. “If Obama came out clearly and said, ‘You’re wasting money on illegal searches and somebody’s going to lose their job if it doesn’t stop,’ then guess what? Somebody would get the message that this is unacceptable.”
Spence said he is cautiously optimistic that between the new legislation sponsored by Inhofe and the new commissioner at Border Patrol, who is at least willing to study the issue, the problem can be solved.
“We’re not even close to saying ‘mission accomplished,'” he said.
Rosenthal is equally cautious. Even if the raids slow down, they have a “chilling effect” on pilots exercising their freedom to fly, he said.
“It would be one thing if these were planes coming over the border or flying near the border, but they’re in the middle of the country traveling between two U.S. cities, and there’s no probable cause whatsoever. A few times I have landed and seen black SUVs, not knowing if it’s the government, and the first thing that pops into my mind is, ‘Oh boy, am I going to be detained?’ I don’t know of a pilot who doesn’t now have a fear of that sort of thing, because there is no way to protect yourself from it.”
AOPA has an entire section on its website titled “What to do if stopped by law enforcement” under which it cites “a growing number of reports from law-abiding pilots stopped by armed federal agents on the ramp, AOPA has prepared a kneeboard checklist on how to handle the situation.”