The Trusted Traveler Mess: New York vs. Federal Government

NY Attorney General officially announces lawsuit

WBEN Newsroom
February 10, 2020 - 3:34 pm
Nexus

(WBEN Photo/Brendan Keany)

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BUFFALO (WBEN) - State Attorney General Tish James has formally sued the Trump Administration over Homeland Security's decision to block New Yorkers from participating in the Trusted Travelers Program.

The suit — specifically filed against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and the two agencies’ acting-leaders — argues that the policy change was made as a result of an arbitrary process that poses a threat to New Yorkers’ safety and the state’s economy, directly harms hundreds of thousands of individual residents, and interferes with New York’s rights as a sovereign state.

“New Yorkers will not be held hostage by an Administration intent on restraining the sovereign rights of states, while it simultaneously enacts discriminatory policies across the country,” said Attorney General James. “Today, we are filing a lawsuit to stop the president and his Administration from punishing New York for passing its own laws. The Trump Administration’s new policy not only negatively impacts travelers, workers, commerce, and our economy, but it jeopardizes public safety. No one should ever use our nation’s security as a political weapon, let alone the commander-in-chief.”

Governor Cuomo, who has been rather outspoken during this entire process, also weighed in on the lawsuit.

"We will not compromise our values nor back down when the federal government continues to unfairly and illegally target New York," he said. "There are more than a dozen states – including red states – with similar laws, but President Trump and his enablers are once again taking their aim at New York’s economy in a way that not only inconveniences travelers, but also creates very real security issues. Make no mistake we are fighting back and will be using every tool available to us to do so.”

James contends that the Trump Administration’s new policy specifically defies the Intelligence Reform and Terrorism Prevention Act of 2004, which — under a Congressional mandate and recommendations from the bipartisan 9/11 Commission — calls on DHS to establish an international registered traveler program for use by all states and territories of the United States. The decision to solely halt New York’s participation in this program profoundly jeopardizes public safety for New Yorkers and all travelers. Further, James argues that this new policy is a punitive measure intended to single out New York and coerce the state into changing its policies to compel conformity with preferred federal policies.

New York's attorney general says economists have estimated that delays on the U.S./Canada border have already cost American businesses billions of dollars each year and resulted in tens of thousands of jobs lost, making the president’s decision even more harmful to New Yorkers — especially to those in Western New York. In fact, New Yorkers seeking to commute across New York’s land borders with Canada — specifically those in Western New York — will be severely harmed by the Trump Administration’s new policy.

  • 30,000 drivers in the FAST program will lose access to the automated system.
  • Drivers in the NEXUS program — which, in Western New York alone, services 6,500 trips across the Peace Bridge, the Whirlpool Bridge, the Lewiston-Queenston Bridge, and the Rainbow Bridge each day — would be severely handicapped.
  • 25-percent of auto traffic utilizing the Peace Bridge relies on the NEXUS program and 60-percent of truck drivers utilize the FAST program.
  • A car driven by a non-NEXUS driver typically takes four times longer to move across the Peace Bridge than a car driven by a NEXUS driver.

Listen to James' full press conference below:

The action taken by the DHS has sparked a wave of outrage local officials as well.

On Monday morning, members of the Erie County Legislature, as well as the Buffalo Common Council, held a press conference to assail the announcement, further saying that it's nothing more than political retribution.

"The federal administration, apparently at the behest of Congressman Tom Reed and others, has moved to cut us off from this critical program," said Erie County Legislator April Baskin. "The feds claim that this action is in response to the state legislature passing the Green Light Law, which merely ensures that any resident here in New York that drives on our roads has a driver's license. The Green Light Law ensures driver accountability and public safety."

Niagara Falls Mayor Robert Restaino claims there will be a huge impact to their economy.

"The Fast and Secure Trade Program is part of the program that has been suspended, and that's the program most used by transport companies," said Restaino. "As we take a look at trying to grow our economy in Western New York and Niagara Falls, I want to compete in the warehouse and transportation business. We know that we transport across our bridges automobiles and other products. If I ask a company to consider relocating to New York State, and most especially into Niagara Falls from other part of the country because we can access the millions and millions of Southern Ontario consumers, why would you do that, if in fact you don't have that immediate access anymore?"

Listen to the full press conference below:

In an interesting and unusual move, US Attorney JP Kennedy held a press conference to discuss state law, and he says the real danger of the Green Light Law has nothing to do with licenses at all.

The law, according to Kennedy, prohibits the New York State DMV from sharing any information with agencies that enforce immigration law, including the Department of Homeland Security.

"It is my interest in national security and public safety that has caused me to take the unusual step of calling this press conference here today," said Kennedy. "Matters of state law are typically just that - they are something upon which I, as United States attorney, ordinarily have no business commenting on. However, whereas here, state authorities target and purposely restrict or obstruct to one of my key partners in federal law enforcement, the Department of Homeland Security, the federal law enforcement agency whose very purpose is to secure the safety and security of the American people, I am compelled to speak."

Rose Brophy serves as the director of field operations, and she provided an example of how this restriction has tangibly affected the officers' ability to do their jobs.

"Last week, we had an individual who ran the port - the vehicle had not been identified as stolen as of yet, but we had no way to identify who the true owner of the vehicle was," said Brophy. "Previous to that, we would have had that information in real time; we would have been able to identify that person and identify who the actual owner was, contact that owner, and contact the appropriate local law enforcement to address.

"We were able to get there, but it took us a lot longer," she continued. "That puts not only our officers at risk, but the public safety."

According to a release, DHS agents seek New York State DMV information for a myriad of reasons:

  • Obtain identification, address, and vehicle registration information for individuals committing crimes
  • Identify and apprehend dangerous defendants and fugitives wanted by state or federal authorities
  • Conduct surveillance of individuals suspected or known to be engaged in the commission of crimes
  • Establish the probable cause necessary to secure search and arrest warrants
  • Identify crime victims and potential crime victims
  • Identify the proceeds of crime to increase the amount of restitution recoverable for crime victims
  • Make informed determinations regarding whether, when where and how to stop a vehicle, to minimize the risk to occupants, officers, and others
  • Assist in determining whether to grant individuals presenting themselves at ports of entry admission into the United States

"Historically, when a vehicle with New York plates arrived at an inspection lane here at the Peace Bridge from Canada, an automated license plate reader would scan the plate, assess the state's DMV records, identify the owner, search records for stolen vehicle information and perform searches on other databases for warrant information and crossing history," said Kennedy. "That procedure aids the CBP inspection process, so that those who are criminal or security threats can be interdicted, and ordinary travelers can be admitted without undo hassle.

"Because of the Green Light Law, when a New York vehicle presents itself, CBP officers cannot access DMV records, cannot identify the owner, cannot determine if the traveler with New York State registrations and licenses, who is driving the vehicle, has had a suspended license," he continued.

Kennedy also added that New York is the only state, of the states that have legislation similar to the Green Light Law, that prohibit this kind of information sharing with immigration law agencies.

"I know we spend a lot of time because it's been a topic of great interest, recently this Trusted Traveler, but I think the message too, and hopefully the takeaway here is that it goes much beyond what's actually going on at the border," said Kennedy. "There are literally hundreds, if not thousands of DHS agents that work here in the Western District of New York, and everyday, get up and try to interdict crime, save victims, protect victims, and protect the community. Their inability to gain this information maybe doesn't have as pronounced an effect as it does right at the bridge, but I think it's much more insidious - I think it's much more damaging to our community because it basically inhibits their ability to conduct investigations..."

Listen to the full press conference below:

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