Civil asset forfeiture has never been about dismantling criminal operations. It has always been about immediately enriching those who directly benefit from every dollar seized under the pretense that taking cash away from random people somehow cripples multi-national drug operations that have both the personnel and the cash on hand to survive these small-ish seizures.
The DEA (Drug Enforcement Administration) is an opportunist. It actually pays TSA (Transportation Security Administration) agents to search bags for cash, treating each discovery as evidence of criminal activity without being burdened with actually having to prove the seized cash was obtained via illegal transactions.
That’s why the DEA regularly scans airline databases in hopes of finding people traveling in to or out of international airports who might be carrying a little extra cash. That’s why TSA agents are earning quasi-bonuses by scanning luggage for cash, rather than for explosives or actual contraband. That’s why the DHS simply ignores these abuses of power, even when it’s clear taking cash from travelers has absolutely zero net positive effect on travel and/or public safety.
Unfortunately, no federal court will convict, so to speak. This continuous taking of cash from travelers has yet to be ruled a constitutional violation. Neither have the underlying programs that enable this. Courts have, for the most part, found little reason to prevent law enforcement from taking money from people just because they can.
Now that it’s far too late to matter, the Department of Justice has issued a memo criticizing the DEA’s airline passenger-targeting civil asset forfeiture program. Arriving at the tail end of the Biden Administration, there can be little doubt this guidance will be rolled back and any criticisms disavowed once Donald Trump takes office for a second time.
For whatever it’s worth (and for how long), at least this exists for the meantime. Here’s the opening of the DOJ’s memo [PDF] addressing DEA cash seizures at US airports. (h/t C.J. Ciaramella at Reason)
The purpose of this memorandum is to bring to your immediate attention serious concerns identified by the U.S. Department of Justice (Department, DOJ) Office of the Inspector General (OIG) during our ongoing oversight of the Drug Enforcement Administration’s (DEA) transportation interdiction activities.
[…]
The OIG recently identified that, during its transportation interdiction activities, the DEA was not complying with its own policy on consensual encounters conducted at mass transportation facilities, resulting in personnel creating potentially significant operational and legal risks. Specifically, the DEA was not complying with DEA policy to complete the DEA-177 Consensual Encounter Form (DEA-177 form) for each consensual encounter, despite prior DEA representations to the OIG that the DEA was doing so. Additionally, the DEA was not ensuring that all DEA task force personnel complete interdiction training required by DEA policy, despite the DEA’s prior representations to the OIG that the DEA would do so, resulting in personnel conducting interdiction activities at transportation facilities without first receiving the required training.
While this is a positive development, it’s pretty much useless — both because of what it says and the likelihood it will be rolled back by the incoming head of the DOJ, whoever that might be. The OIG has “concerns,” but its concerns don’t deal with the DEA deliberately targeting travelers they think may be carrying cash it can claim for itself. Instead, it’s much more concerned about DEA agents’ failure to pencil-whip the required forms before stealing cash from travelers it can’t be bothered to actually bring criminal charges against. All this means is DEA agents — at least temporarily — will spend a bit more time on paperwork following dubious cash seizures.
If nothing else, though, the memo has at least resulted in a temporary termination of DEA theft.
On November 12, 2024, after receiving a draft of this Management Advisory Memorandum (MAM), the Deputy Attorney General issued a directive to the DEA to suspend conducting, pending an assessment and evaluation, all consensual encounters at mass transportation facilities unless they are either connected to an existing investigation or approved by the DEA Administrator based on exigent circumstances.
That’s better, but all it does is terminate “consensual” encounters, which are “encounters” in which DEA agents roll up on a traveler and try to intimidate them into “consenting” to a warrantless search of their baggage. Given the extremely minimal requirements attached to “reasonable suspicion,” especially in terms of international travel, non-consensual encounters have likely increased to match any (small) reduction in “consensual” encounters.
There’s more detailed in this memo that shows just how desperately the DEA wants to turn airports into a perpetual revenue stream. Not only is the DEA funneling money to TSA agents, but it’s also converting airline employees into “confidential sources” just so it can be given access to travel records and any other personal/financial information obtained by airlines when selling tickets to US citizens. The OIG says this program (if it even can be called a “program”) has been handled sloppily (intentionally) with very little vetting or supervision of airline confidential sources who still continued to get paid, even if their contribution hasn’t resulted in the arrest of criminals or recovery of actual contraband. (Carrying cash isn’t illegal. Some reporting requirements are mandated when leaving the country, but domestic passengers aren’t subject to federal cash reporting requirements.)
The DEA’s efforts in US airports amount to bounty programs that pay (untrained and un-vetted) airline employees to provide targets for “consensual” encounters meant solely to discover cash to seize.
[W]e learned of a DEA office that has a Limited Use CS, who is an employee of a commercial airline, and has for several years been paying the CS a percentage of forfeited cash seized by the DEA office from passengers at the local airport when the seizure resulted from information the CS had provided to the DEA.
In one particular case involving this Confidential Source (CS), the DEA received “tips” on five passengers who had bought their tickets within 48 hours of departure. The DEA ran all the names against criminal databases and the search came up empty. Nevertheless, the DEA sent agents to coerce these passengers into “consensual” searches. As the OIG notes, this means the DEA did not have the requisite reasonable suspicion to initiate these encounters.
One of the passengers accosted as a result of this airline employee’s tip recorded the encounter, which ended with the DEA telling him he could continue to travel but leave his bag behind if he did not consent to a search. A search (one that involved a drug dog “alerting”) recovered no drugs, no cash, and no contraband. The recording of this incident was made public by the person searched (who also missed their flight because of the DEA). The OIG points out the paperwork that was supposed to accompany the documentation of this encounter never managed to materialize until after the recording had been made public by the person they stopped and searched.
The records that the OIG was able to view show this airline employee has been paid handsomely for their dubious contribution to public safety. But whether or not they’re actually worth the money they’re being paid is still a mystery, because the DEA refuses to do the mandated paperwork for each encounter, presumably because it doesn’t want to create a permanent record of its false positives.
The OIG’s review of DEA records revealed that the CS who provided the information to the DEA task force that day has received tens of thousands of dollars from the DEA over the past several years for seizures resulting from information the CS provided of travelers with tickets purchased within 48 hours of their flight. We are unable to determine the total number of travelers the DEA has searched over the years as a result of information provided by the CS, or the number who have refused to be searched following consensual encounters with the DEA at the local airport, because the DEA office in question kept records of such interactions only when they resulted in a seizure of money or contraband.
On the micro level, there’s the stuff listed above. On the macro level, there’s the fact that the DEA engages in biased policing. While cash is the primary focus, the secondary focus appears to be on travelers who just aren’t white enough to be trusted to board airplanes without some additional hassling. Of course, the DEA doesn’t want the public or its oversight to know this, so agents — yet again — ignore mandates and policies to avoid creating a paper trail.
Additionally, the DEA Office of Training’s review found that the DEA-177 form was not consistently applied by personnel conducting transportation interdiction and that “unknown” was often selected in the required “perceived race, ethnicity, and gender of individual encountered” field to avoid the perception of bias. Further, the Office of Training found that the Jetway training program had no consolidated DEA headquarters senior leadership oversight and that the program did not align with DEA training policies or instructor-vetting practices.
Which is all intentional. The DEA doesn’t want oversight asking too many questions. It doesn’t want to create records that might end up in the hands of the public. And it certainly doesn’t want anything to interrupt this steady flow of cash — a never-ending stream of unearned income that has done absolutely nothing meaningful to interrupt the international drug trade. The DEA wants free money and the latitude to harass minorities, even if that harassment is ultimately nothing more than cruelty for its own sake. This memo exposes the problems, but the DEA has no interest in solving them. And it’s extremely unlikely the next person running the DOJ will have any interest in maintaining the very comfortable guardrails this OIG report proposes.
