Some random boardings might be legal, but aren’t they all ‘creepy’?

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Wow! Thanks for all of your thoughtful comments responding to Loose Cannon on the topic of Coast Guard and police boardings. With the four-day Independence Day weekend upon us, you can bet that many of you will get to experience a boarding firsthand, so I thought it would be appropriate to step back and address the dozens of people who took the time to give their opinions and the thousands who read the post but kept silent.

With Independence Day coming up, I thought I would put my distaste for government intrusion into a historical context. When my boat was boarded in Charleston for a Coast Guard safety inspection, I had just finished reading “Bunker Hill” by Nathaniel Philbrick, a new book about the origins of the American Revolution that I would heartily recommend to anyone who wants to be reminded how and why we opted out of British rule.

Those patriots were a prickly bunch, sensitive to even the most routine encroachment on their “liberties” by the British crown. Britain was reasserting herself in her American colonies, and her representatives were astonished at the attitudes that had developed after decades of benign neglect. Faced with this liberty mindset, they tried conciliation and compromise, but they could never do enough to satisfy those radicals. Then came a clash of arms, independence and a constitutional republic. Then came us.

Conventional wisdom says the patriots comprised about 30 percent of the population, crown supporters — aka Tories — accounted for another 30 percent, and the rest were indifferent or so able to see both points of view that they stayed on the sidelines politically. I wonder if the ratio wasn’t closer to 20-20-60.

Which are you?

The people who responded to Loose Cannon fit squarely in the same categories. Those who resent boardings as much as I do would probably have been prickly patriots back in 1776. My blog got the support I would have expected from a boater crowd, given that the very word “boating” is synonymous with “freedom” for many of us.

Those who defended the government or its civil servants would very likely have been Tories. Don’t take this the wrong way, Tory friends, but back in 1776 you would have seen security and the benefits of belonging to the British Empire as tangibles, more important than somewhat philosophical stuff like the imagined rights of privacy and speech, etc.

Some of my favorite comments, one of them an essay by a retired Coastie, were from people able to see both points of view. Who knows what side they would have been on during the Revolution? Maybe neither.

One thing I am certain about: If we could wake those Founding Fathers up and tell them about our recently revealed, Leviathan system of government surveillance — yes, first we would have to explain the concept of “phone” — they would be appalled and probably ashamed. It’s difficult not to see the issue of random boardings and the NSA surveillance apparatus, as recently exposed by fugitive leaker Edward Snowden, as part of a single whole. The Snowden affair may well have been the background music that inspired so many of you to reply.

Call them safety inspections if you want, but part of what drives random boardings is the security mentality developed after 9/11. The eternal War on Terror in which we now engage has supplanted the War on Drugs — which the American people are finally getting tired of — as the true impetus behind the Coast Guard’s growing role as a law enforcement agency.

People forget that in the 1950s and ’60s, during the formative years of recreational boating, we saw the Coast Guard as a search-and-rescue organization. Period. I believe that’s how the Coasties saw themselves back then. Certainly this self-image persists among the men and women who serve in Alaska, but so much of the rest of the service seems to have become just one stop in a law enforcement career.

Some of the commenters implied that my opposition to random boardings means I’m against the Coast Guard or its personnel. Not so. I still have the commendation I received for assisting Coast Guard aircraft in the rescue of three fishermen adrift in the Southwest North Atlantic. Don’t get me wrong — I am perfectly capable of supporting SAR while deploring boardings and the law enforcement mentality behind them.

OK, I took a couple of cheap shots at the Coast Guard’s boarding team because I didn’t like her tattoos and I think combat boots are just plain wrong on the feet of first-responders on the water. The boots are, in fact, unseamanlike. But it’s the mission, not the man or woman performing it, that I truly resent.

Common sense

Some commenters suggested that random boardings of slow, fat sailboats full of middle aged men and women, children and dogs are the price we pay to prevent terrorist attacks. Is that what you think when you’re standing in line at the airport and a TSA officer is pawing some 85-year-old grandmother? Does that make you feel safer? The world has become dangerous and complicated, some of you said, so our response should be to abandon common sense?

The Supreme Court in 1983 upheld the Coast Guard’s right to board any vessel without cause; it was a marijuana smuggling case, and Coast Guard personnel had boarded a sailboat without any “reasonable suspicion of a law violation.” The ruling said in part:

The nature of waterborne commerce in waters providing ready access to the open sea is sufficiently different from the nature of vehicular traffic on highways as to make possible alternatives to the sort of “stop” made in this case less likely to accomplish the obviously essential governmental purposes involved.

The six-to-three majority also noted the Coast Guard’s historical use of warrantless boardings.

Right they were, the Coast Guard started its life as Treasury Department revenuers. It was launched in 1790 as the Revenue Cutter Service to combat rampant smuggling, using “suspicionless” boarding as a principal tactic. The search-and-rescue component was added when the revenue service was merged with the U.S. Lifesaving Service in 1915 to become the U.S. Coast Guard. The Coast Guard reverted to its revenuer role during Prohibition, fought World War II at home and abroad, and then settled into what was generally a peaceful three decades of helping boaters in distress.

I was touched by the words of the late Justice William Brennan, who wrote for the minority in the case of U.S. vs. Reynaldo Villamonte-Marquez. He really understood how I felt in Charleston last month when confronted by a squad of police dressed like a SWAT team.

Despite the Court's enthusiasm for identifying differences between boats and cars, it overlooks one obvious difference — the greater expectation of privacy that persons enjoy on boats. A boat, unlike a car, quite often serves as an actual dwelling for its owners, as was apparently true in this case. Even where the owners do not live aboard full time, a boat may serve essentially the same function as a summer vacation cottage — a residence, albeit a temporary one. In either instance, the occupant would quite reasonably suppose that he was entitled to remain undisturbed by arbitrary government authority. The Court, however, sweeps this expectation aside without a thought.

The majority also argued that boardings were necessary because of the inconsistent federal and state regulations on displaying boat numbers, essentially saying that the Coast Guard must conduct boardings because all boats don’t have license plates.

Brennan’s response:

The Court further rests on the fact that vessels, unlike cars, do not carry uniform license plates giving visible evidence of compliance with registration laws. It identifies no reason, however, why that is a necessary or permanent state of affairs. It would be manifestly easy and comparatively inexpensive to provide boats with such means of identification. It is unseemly at best for the Government to refrain from implementing a simple, effective and unintrusive law enforcement device, and then to argue to this Court that the absence of such a device justifies an unprecedented invasion of constitutionally guaranteed liberties.

Moreover, assuming that some check of documents is necessary, the Court does not explain why that need invariably requires the police to board a vessel, rather than to come alongside or to request that someone from the vessel come on board the police vessel. Use of ship-to-shore radio, too, contributes considerably to the Government's ability to keep track of documentation and registration matters.

This is truer now than then. Certainly with computers and Internet connectivity, such a system would instantly provide the Coast Guard and other on-the-water police with data that could help determine whether a boat should be boarded or left alone. The marine industry should push Congress to create a consistent system, just the way we have done with driver’s licenses.

Too creepy

Otherwise, random boardings will continue to threaten the future of recreational boating. One of my commenters told a story about an acquaintance who, having been boarded multiple times, decided to sell his boat and become an antique car enthusiast. Here are the words of another couple from Ohio (quoted from a different forum) who decided boating on Lake Erie wasn’t worth it:

We have lived on the lake for 30-plus years, and we stopped boating. It is just not worth the hassle. Being followed around and watched through binoculars by security forces just takes the fun out of a day on the lake.Being boarded and questioned is intimidating and in my opinion, un-American. It’s just creepy.

Yeah, it’s creepy. There’s a lot of creepy going on right now. “We have met the enemy,” Pogo famously said, “and he is us.”

P.S. Memo to the Coast Guard: Just because you have the power doesn’t mean you have to use it.