Tom Temin Commentary

When agency management and the IG disagree

You'd think CBP and ICE would welcome stronger oversight of controversial seizures and forfeitures.

Tom Temin@tteminWFED

September 2, 2020 9:16 am

4 min read

I spotted it before my wife did. A small metal object going ’round and ’round on an otherwise empty luggage carousel in the international terminal of a large airport.

Glancing around, I scooped it up — a full can of paprika from India. Against my wife’s admonition to leave it there, I took it home.

Alas, never fully trusting whether it was uncontaminated, or even paprika in the first place, we threw out the can several years later without ever having tasted a speck of it.

That pound-sized can of paprika came to mind in reading the Department of Homeland Security’s Office of Inspector General findings on seizure and forfeiture of property. You’re allowed to bring dried spices into the U.S., but maybe some traveler was worried you couldn’t and that it would be seized.

According to DHS data, Customs and Border Protection accounted for more than 90% of forfeiture cases for seized property. Briefly, seizure is one thing, done on suspicion of a crime. Forfeiture is the legal process by which the agency transfers title of the property, including cash, to the government. The apparatus is mainly used, as the IG put it, to disrupt and dismantle criminal enterprises. Sometimes you can get a good deal on a boat or hot car that the government has seized, forfeited, and made available for sale at auction. Although I often wonder what would happen if a bunch of hoodlums spotted you gallivanting around in a yacht or V8 Camaro they used to own.

Immigration and Customs Enforcement (ICE) and the Secret Service also have seizure and forfeiture authority. ICE hands most of its seizures over to CBP for forfeiture. The agencies, I think it’s safe to say, worry more about contraband, smuggling, weapons, money laundering and counterfeiting than tins of paprika.

In all cases, they’ve got to act fairly and statutorily. What concerned the IG primarily was the nearly exclusive use of administrative forfeiture authorities. That is, the conversion of seizures into forfeitures without a judge or any involvement by the judicial branch.

The audit found inconsistencies in the seizure/forfeiture policies and procedures among the agencies. This despite the fact that the components have written policy guides for this activity to keep it within the strictures of the Civil Asset Forfeiture Reform Act of 2000, or CAFRA. The law was enacted before the existence of DHS, to provide stronger safeguards for people whose assets have been seized.

The IG said that CBP, in contrast to the Secret Service, uses confusing language to advise citizens of procedures for petitioning against forfeiture. It also found that the agency sometimes unfairly keeps a portion of people’s money before returning the rest — that is, after deciding not to proceed with forfeiture of a seizure. CBP and Secret Service require citizens to sign hold-harmless agreements before they get their property back, something the law doesn’t mention.

The audit turned up many other problems, some that had caused the Justice Department to express concern. The IG came to the conclusion that Homeland Security headquarters should exercise much stronger oversight of seizure and forfeit activities by establishing department-wide policies, and by establishing an office specifically to review and oversee these activities.

DHS management disagreed with several of the IG’s findings. It said that the initial IG draft showed a misunderstanding of CBP’s authorities and procedures, in part by conflating CAFRA-governed and non-CAFRA-governed seizures. It rejected the recommendation for a separate oversight office. Fair enough. That’s how the process works. But I found it interesting that the rebuttal came from a separate office that exists for the sole purpose of dealing with the inspector general and Government Accountability Office. The counter-argument came from Jim Crumpacker, director of the Departmental GAO-OIG Liaison Office.

Surely DHS could consider a watchdog for an activity — seizure and forfeiture — that potentially causes great hardship for innocent people and undermines the perception of fairness and legitimacy of the government. The seizure of property has long been controversial. The most recent, negative report comes from the Institute for Justice. It calls the cash seizure by CBP “jetway robbery” because seizures precede any finding of guilt, or even of the agency charging someone with a crime. Check out my interview with the Institute’s Jennifer McDonald for more.

CBP seizures run around $1 billion a year, not chump change. Presuming CBP and the others mostly do it correctly, they should welcome the strengthening of policies and oversight.