Continued from Part 1:
Why can the Coast Guard search our boats without a warrant or probable cause, when the police can’t search our homes, cars, offices, motorhomes etc.?
It’s always been this way. The same congress that passed the Bill of Rights passed the Revenue Service Act of 1790, which gave revenue cutters the right to search any vessel anywhere in US waters, and any US-flagged vessel anywhere in the world.
Our fledgling nation was strapped for cash, and tariffs were the way to solvency. This was controversial even back in 1790, since many of our gripes against the British, as stated in our Declaration of Independence, had to do with tariffs (see Boston Tea Party). The crews of revenue cutters were allowed to board vessels to make sure they’d paid the tariffs on their cargoes.
An early revenue cutter. All photos courtesy of US Coast Guard
Since 1790 the Coast Guard has been shaken up, mishmashed, and passed around like a red-headed stepchild, but the Revenue Service Act of 1790 has only gone through minor changes.
The modern Coast Guard is an amalgamation of five federal agencies: the Revenue Cutter Service, the Lighthouse Service, the Steamboat Inspection Service, the Bureau of Navigation, and the Lifesaving Service. The Coast Guard, as a named entity, wasn’t created until 1915 under Woodrow Wilson. For much of its history it was part of the Treasury Department. In times of war it sometimes falls under the Navy’s command and sometimes acts on its own, but Coast Guardsmen and their predecessors have fought in every war in our nation’s history.
Now the Coast Guard is part of the Department of Homeland Security, with added counter-terrorism and intelligence responsibilities.
The Coast Guard is not represented on the Joint Chiefs of Staff, yet carries out military and quasi-military operations. The top brass constantly complains that the Coast Guard is ignored and underfunded. “Support on Capitol Hill is about five miles wide and one inch deep,” said a retired Coast Guard vice commandant. Ignored and underfunded, yet it has the most sweeping search and seizure powers ever thrust on US citizens.
Why do they board us and search us, and what are they looking for?
If you ever ask why you, in particular, got singled out from all the boats on the water that day, the boarding officer will say these exact words: “I’m not a liberty to say.” Since there is no requirement for probable cause, they don't need a reason. It’s just bad luck, or maybe they didn’t like the cut of your jib.
Most of what they’re doing is training. Boarding strange vessels on the high seas is a big part of their job, and our boats are good practice. Many coasties don’t come from a boating background—or certainly haven’t been on a sailboat—and they’ve got to learn the ropes.
They’re checking our documentation, safety gear, seeing if we’re drunk, and checking for environmental violations. Are we dumping oil/fuel/sewage into our precious waterways? It’s common to check bilges for oily water, and if there’s an automatic bilge pump in that oily water, we’re so busted.
They’re also checking for fisheries violations, people smuggling, arms smuggling, and drug smuggling. Twenty-six percent of Coast Guard activities are related to drug interdiction, and they are looking for illegal narcotics on every vessel during every boarding.
Considering what we’ve come to expect of our Fourth Amendment rights on land–No, officer, you can’t come in my house and have a look around–suspicionless searches of our boats don’t feel right to most of us. I lived aboard for ten years, and I consider my boat to be my private home. The salons, staterooms, and bunks on our boats are just like our living rooms, bedrooms, and beds at home: Ours, personal, private, and not open for random tours or training missions by strangers.
Some argue that because boats don’t have license plates like cars, the Coast Guard has to board us to check our documentation, but boats either have numbers, a name and hailing port, or both, and these can be seen easily. Any confusion with a boat’s identity can be sorted out by radio or by coming within hailing distance. By the way, the average Coast Guard vessel has advanced optical equipment and digital cameras: When you can barely make out individuals aboard their cutter, they’re reading the numbers off your iPhone.
They’re checking our safety gear (for our own safety, of course) but the police can’t randomly inspect our cars for seat belts, air bags, good brakes, or child seats, nor can they enter our homes to check the gas shut-off, the backflow preventer, or the tags on our mattresses.
Most of us have the right safety gear to protect ourselves and our crew, and most sailors have more safety gear than required: The Coast Guard doesn’t require EPIRBs, radios, LifeSlings, harnesses, jacklines, or any number of items that most sailors consider standard equipment.
They’re protecting the environment, but the police can’t perform random smog checks on cars, or enter our homes to make sure we’re not pouring used motor oil down the bath tub drain.
In short, the justifications for suspicionless searches at sea would never stand up on land, where they would seem downright un-American.
The Coast Guard has terrorists to catch, drugs to interdict, people smugglers to stop, and environmental hazards to avert, but none of these aims are met by suspicionless boardings of recreational craft. They’d have the same odds going door to door in residential neighborhoods, or randomly pulling cars over on the road to search them for bombs, drugs, human traffic, or leaking plutonium. They might get lucky every once and a while, but the way almost all real busts take shape is through probable cause, tips, or old fashioned police work.
What are some alternatives to suspicionless searches of our boats, how could they come to pass, and why hasn’t the Revenue Service Act of 1790 been overturned or revised?
Stay tuned for part 3.