Borderline breakdown

Although critics won a few concessions—including an exemption for children—there could still be more tension ahead as the rule comes into effect. Indeed, while DHS has long maintained it is ready to implement the new program, Canadian officials and others are not too confident of American readiness. New York Rep. Louise Slaughter predicts “pure chaos.” Van Loan says he hopes to see a “practical, flexible approach,” rather than a zero tolerance policy for anyone attempting to cross without a passport. “There are various things you can do—obviously not holding everyone to strict rules on June 1,” he says. “Use [the deadline] as an opportunity to educate travellers and use other information to convince yourself of their identity.”

Napolitano is expected to visit Canada on May 26-27, just days before the new passport requirement takes effect, making stops in Ottawa and at the Detroit-Windsor border crossing. When her appointment was first announced, it raised hopes among Canadian officials and business groups that a new era was arriving. Her predecessor, Chertoff, was a former judge who headed the criminal division of the Justice Department during 9/11. His law enforcement mentality was seen as a sea change from his predecessor, Tom Ridge, the former Pennsylvania governor. Where Ridge was seen as consultative and co-operative, Chertoff appeared to simply lay down the law. Napolitano seemed to be a hybrid of the two. Like Chertoff, she had been a prosecutor; like Ridge, she was a governor, in her case of Arizona, which shares a border with Mexico.

But Napolitano got off to a rough start. First, she ordered an “action directive” on the Canada-U.S. border. It was nothing more than a request for detailed information about a border with which she was not familiar, but it was spun into headlines suggesting she planned a new crackdown. Next, she gave an interview in which she seemed to suggest that she believed the 9/11 terrorists came from Canada. She then said she misspoke. (Van Loan insists the secretary was fully aware that the terrorists did not come from Canada because they had discussed it as an “urban myth” that they had to fight and blamed her comment on a leading question.) But later, Napolitano made headlines yet again at a conference on border policy at the Brookings Institution in Washington, referring to a political environment in which she is pressured to treat both the Canadian and Mexican borders with “some parity”—a comment that was misinterpreted as saying she herself saw them as equivalent.

Napolitano’s spokeswoman declined an interview request. Despite the tense beginning, Van Loan says that he and Napolitano have already made two breakthroughs. They have committed to meeting twice each year to discuss the border—outside of any other events that they may also attend. They have also committed to looking for ways to share resources and manage the border together. For example, a past pilot project that tried out joint U.S.-Canadian boat patrols of shared waterways could become permanent. “The high-level meeting mechanism will drive decisions on co-operative approaches to security and facilitating trade,” Van Loan says. “We didn’t have that kind of mechanism before and that I think is a very positive step.”

Nonetheless, there remains a huge gulf between how Canada and the U.S. treat people and goods coming into North America, one that will remain problematic regardless of how many meetings are held with the secretary of DHS. A big area of difference is refugee policy. There is a perception in Washington that Canadian asylum rules are too lax. But, although Canadian officials say they are not more permissive—each country admits roughly the same proportion of applicants—the big difference is what happens when they arrive. In the U.S., asylum seekers are routinely detained until their cases are decided. In Canada, they are rarely detained, and are allowed to work and receive benefits while their cases are handled. They are also given more opportunities to appeal deportation orders. An inspector general’s report in 2003 found that many of those found to be deportable disappear and are not removed from the country. (Ahmed Ressam, the would-be “millennium bomber,” captured crossing into the U.S. with explosives in 1999, was one such case.)

Ottawa has since tried to remedy this, but there is little interest in adopting the detention-heavy U.S. model, which is criticized by some human rights advocates. The two countries also differ on which countries enjoy visa-free travel status. Canada waives visas for more than 50 countries, including many Commonwealth nations, while the U.S. list had just 35 countries. Citizens of Mexico, Croatia and Greece, for example, can enter Canada, but not America, without visas. There is little expectation that the differences will be bridged. “I would say that they don’t have an appetite for synchronizing with us,” says Van Loan. “We do have countries with whom we have visa-free travel. We are not going to adopt the American [policy]. We are going to develop our policy with Canada’s national interests in mind.”

Another gap between the two nations is their approach to gathering information from people who intend to enter either country from abroad. The U.S. has invested a lot of money and manpower since 2001 in collecting information about travellers before they arrive in the U.S. On Jan. 12, the U.S. brought in a new program called ESTA (Electronic System for Travel Authorization), which requires people coming from countries that do not require visas, such as European Union nations, to fill out an electronic travel authorization 72 hours before coming to the U.S. Their names are then compared to suspected terrorist watch lists; only after they are cleared can they board a plane, and when the traveller lands, biometrics such as all 10 fingerprints are collected. Canada does not require pre-authorization for travellers, nor does it collect as much information about them, and it does not fingerprint at arrival. Canadian officials say that they are “looking at” copying the American system, but say it would require a large investment and would raise all kinds of legal and privacy issues, especially if the information was to be shared with the U.S.

In one potential bright spot, Van Loan says Napolitano made a written commitment to reopen talks about setting up pre-clearance facilities for commercial goods at the land border to move customs inspections away from the actual physical border to make the crossing more efficient. A major issue for Canadian and U.S. business groups, it was shuttered by the Bush administration in part because the two countries could not reach an agreement about whether U.S. officials operating on Canadian soil would have the authority to fingerprint people intending to enter the U.S. but then deciding to turn around and not cross. “We haven’t settled on a particular pilot project,” Van Loan says. “The Americans are open to looking at it where the Bush administration had closed the door.”

But while the negotiations fell apart over the issue of fingerprinting, the concerns at DHS go deeper. DHS lawyers worried about subjecting U.S. pre-clearance activities on Canadian soil to Canada’s Charter of Rights and Freedoms and unpredictable future judicial interpretations of it. For example, while the pre-clearance negotiations were going on, a B.C. provincial court judge ruled in 2007 that border guards in Canada would require a search warrant before opening a trunk. Although that was overturned, it greatly alarmed U.S. officials about subjecting their personnel to Canadian law. In addition, various lawsuits are under way in U.S. courts seeking to limit the powers of American border agents, and DHS does not want to be seen voluntarily giving up powers in Canada that it is arguing in U.S. courts are essential to its job. Napolitano will have to tackle such thorny issues if pre-clearance is to go ahead.

What’s left is incrementalism with no guiding vision for the future—but perhaps an opportunity to slowly rebuild some of the trust that eroded during the Bush era. And maybe even an agreement one day on small planes. “That is an interesting idea,” said Van Loan of the radiological screening post under construction in Ireland. “We are still examining it.”