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Divided Congress agrees: cash seizures at airports are un-American

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WASHINGTON, D.C. (Atlanta News First) – In a rare sign of unity across the aisle, members of Congress want to make it harder for the government to take your cash without charging you with a crime.

“You ought to be convicted before they take your stuff,” U.S. Sen. Rand Paul told Atlanta News First Investigates in his Capitol Hill office. The Kentucky Republican has repeatedly filed a bill to change civil asset forfeiture laws.

That bill has never made it out of committee in the U.S. Senate, but the House of Representatives version of the Fifth Amendment Integrity Restoration Act, H.R. 1525, is closer than ever to becoming law.

“We are going to treat law-abiding citizens at the very least the same as we treat criminals,” U.S. Rep. Tim Walberg told Atlanta News First Investigates. The Michigan Republican has been fighting for nine years to get his bill to the House floor.

Atlanta News First Investigates exposed the inner workings of a Drug Enforcement Administration (DEA) program called Operation Jetway. The DEA trains local police and federal agents to blend in with passengers at airport gates, where we recorded them selecting passengers for searches at the boarding door.

Court records show, if the agents find $5,000 or more in cash on a passenger flying from Atlanta to Los Angeles, they’ll seize the money as the proceeds of drug trafficking. In the vast majority of cases reviewed by Atlanta News First Investigates, the passengers were not arrested or charged with a crime.

“You’ll catch some crooks in this process as well, but sadly, we’re catching too many innocents who have to fight their way out of this bind,” Wahlberg said. “And many of them can’t do it.”

“You’re supposed to be innocent until proven guilty, not, ‘Oh, you’re guilty. Give me your stuff, and then you can have it back if you prove you didn’t get it through ill-gotten gains,’” Paul said. “That’s not the way our country’s supposed to work.”

The FAIR Act would increase the standard of proof for the government to keep money after it is seized using civil asset forfeiture, in airports or anywhere else.

In Plane Sight, by Atlanta News First chief investigative reporter Brendan Keefe

Currently, the standard is “preponderance of the evidence,” which simply means it’s more likely than not the money is from drug trafficking. That burden on the government is far lower than the “beyond a reasonable doubt” standard required for a criminal conviction if the person is charged with a crime.

“Give them at least the benefit of the doubt that a criminal gets,” Walberg insisted.

Federal court records show DEA task force officers will seize money if the passenger can’t prove — on the spot — that their money was earned legally.

“Unlike a criminal, they have to prove that they’re innocent, and it’s not the other way around which we normally expect,” Wahlberg said. “That’s a problem.”

The FAIR Act would require police prove the money is from criminal activity with “clear and convincing” evidence.

About 90 percent of cases are handled under administrative asset forfeiture, which means the seizure is never reviewed by a judge. Under current law, the agency that seizes the money gets to keep it.

The U.S. Department of Justice (DOJ) took in $1.3 billion last year from civil forfeiture, according to a mandated audit, with most of that coming from the DEA. The DOJ has over $5 Billion in its civil asset forfeiture fund, which the department can spend however it pleases. Most of it, records show, is spent on the programs that lead to more cash seizures.

“It’s a perverse incentive,” Walberg said.

“It was rotten to the core,” Paul said. “A lot of people who get caught up in this are minorities, and people who don’t have the necessary economic circumstances to escape the clutches of government.”

If their bill becomes law, all the money seized by a federal agency would go to the general fund. Agencies like the DEA would no longer be able to keep what they seize.

Bipartisan support

The FAIR Act has 18 co-sponsors. Half of them are Republicans, the other half are Democrats. U.S. Rep. Jamie Raskin (D-Maryland) is Walberg’s primary co-sponsor.

In a divided Congress, it’s rare to see U.S. Rep. Paul Gosar (R-Arizona) and U.S. Rep. Sheila Jackson Lee (D-Texas) agree on anything, let alone a bill that would regulate policing. But the proposal seems to have united civil rights activists with civil libertarians.

U.S. Rep. Hank Johnson is one of the co-sponsors of the House bill. The Atlanta Democrat was a criminal defense lawyer. His Republican colleague from North Georgia, U.S. Rep. Andrew Clyde, is also a co-sponsor. They rarely team up on legislation.

Unanimous support in Judiciary Committee

By all accounts, the House Judiciary Committee has become a partisan battleground. Most hearings and proposals in the committee ignite bitter exchanges between members from the two political parties.

Not the FAIR Act.

The measure passed the House Judiciary Committee with unanimous support in June. “Up until my bill came out of their committee, they hadn’t passed anything out of the committee unanimously” in recent years, Walberg said.

While Walberg is fighting to make his bill federal law, his home state of Michigan recently made it easier for local police there to take money from airline passengers.

Last year, Democratic Michigan Gov. Gretchen Whitmer signed a bill exempting police from another law mirroring Walberg’s FAIR Act, but only at airports. Michigan was one of 37 states that had restricted civil asset forfeiture, but the new law goes back to the old rules for seizing — and keeping — money from airline passengers.

“It’s time to stop it,” Walberg said. “We want our law enforcement agents in our communities to protect us from real criminals. But in the end, a constitutional democracy is messy.”

Law enforcement groups have come out against the bill.

The National Sheriffs’ Association sent a letter to members of Congress in July after the bill passed the Judiciary Committee. “Please preserve a critical tool to fight the drug cartels and vote against H.R. 1525,” the association wrote.

The three-page letter said, “Congress would give the cartels a gift.”

Walberg said sheriffs in his district have called with concerns. When asking if they’d lose the ability to seize suspected funds at airports, Walberg replied, “No, you’ll just lose the ability to put those funds into your own coffers. The assets will go to the general fund.”

The FAIR Act has been favorably reported to the full House. It’s now up to leadership to decide whether it gets a vote on the House floor. GovTrack gives it a 44 percent chance of passing.

If there’s something you would like Atlanta News First Chief Investigator Brendan Keefe to look into, email him directly at brendan.keefe@wanf.com.

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