US budget crisis, legal questions delay Beyond the Border implementation

Canadian Press reports this week that if U.S. Congress cannot sort out a deal on spending cuts, "sequestration will thrust Americans into an age of austerity that threatens to bring to a halt some of the projects envisioned by Beyond the Border." Sequestration, explains the article, "is a massive package of sweeping, automatic spending cuts to an array of U.S. federal departments and agencies set to take effect on March 1." The "age of austerity" part may be exaggerating it a bit, but both Democrats and Republicans agree there is a real problem here.

The article quotes Canadian business lobbyists who suggest the U.S. budget cuts would most likely impact some parts of the Canada-U.S. Beyond the Border Action Plan, including:

- no expansion of, and likely cuts to, pre-clearance at airports in Canada
- a slower pace or missed deadlines on other initiatives

In December, the Harper government issued a report card on where things were at with the perimeter talks. At the time, business commentators pointed out it was heavy on security achievements but light on the minor efficiency tweaks in customs or border procedures that Canadian exporters had been looking for.

For example, a week after Canada's report card came out, both countries announced they had signed an agreement on sharing biographic and eventually biometric information on all third country nationals travelling to Canada or the U.S. News reports pointed out the agreement will allow the United States to share the information with third countries with very little oversight, which could contradict important recommendations of the Arar Commission on better screening what information is shared and to always share with caveats.

The new Canada-U.S. agreement states that no new legislation is required to streamline how visa information is shared, however the Harper government will now need to establish procedures in cooperation with various departments and the federal privacy commissioner's office. I suppose sequestration, if it involves cuts to customs and other immigration-related agencies, could slow down parallel processes in the United States.

Additionally, some Beyond the Border initiatives are stalled on legal questions not related to sequestration or lack of U.S. interest. In early February, Embassy Magazine reported that "Canadian and United States officials are facing continued delays in secretive talks to allow American law enforcement agents to cross the land border and pursue people onto Canadian soil... The program, officially known as the Next Generation of Integrated Cross-Border Law Enforcement, was supposed to be tested through two pilot projects by last summer, but as of Feb. 1 the pilot is still on hold."

NextGen is the land-based version of Shiprider, a cross-border policing project on shared waterways that puts RCMP officers on U.S. coast guard ships and vice versa. Shiprider passed into law in 2012 without a thorough parliamentary study of the details. "The new version will allow American agents, such as front the Federal Bureau of Investigation or the Drug Enforcement Administration, to cross the border into Canada, the RCMP has said," wrote Embassy. "It is supposed to extend the same changes to Canadian agents who want to cross into the US."

John Edward Deukmedjian, a criminology professor at the University of Windsor, told Embassy "I can give you a long list of legal hurdles that would have to be overcome, but are by their nature nearly insurmountable." And the Canadian Civil Liberties Association warns that joint policing at the border could be used to dodge legal safeguards, or carry out surveillance on Canadian residents on behalf of U.S. agencies, when it would normally be prohibited.

"We want to make sure that any activity that occurs either by Canadian forces or in Canadian jurisdiction is compliant with the safeguards in the Charter and the highest international legal standards,” said Sukanya Pillay, the Canadian Civil Liberties Association’s national security program director," in the Embassy article.

Despite the legal hurdles and issue of sequestration, wrote the CP article this week, "At (a recent) event hosted by the U.S. Chamber of Commerce, senior bureaucrats from both countries — all of them working on Beyond the Border or the bilateral Regulatory Co-operation Council — emphasized the progress that has been made in several areas in the first year of the Beyond the Border two-year action plan."

But failure is always in the back of the minds of people like John Manley, former Liberal architect of the Canada-U.S. Smart Border Declaration and now top errand boy for the Canadian Council of Chief Executives. "Canada's going to have to be in D.C. making the case that if you want economic growth, this (Beyond the Border) is part of that," Manley told CP. "You don't want to kill the growth side or to thwart the supply chains."

Beyond the Border is the Security and Prosperity Partnership minus Mexico. The SPP died from a combination of public opposition and U.S. government disinterest in 2009 under a then new Obama administration.