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Bill Aims to Boost Efforts to Bury Use of Cross-Border Tunnels

U.S. Rep. Silvestre Reyes, D-El Paso, wants to close a loophole that allows underground cross-border tunnels — which are often used by Mexican cartels — to flourish.

U.S. Immigration and Customs Enforcement inside an elaborate cross-border drug smuggling tunnel discovered inside a warehouse near San Diego, CA.

Legislation that would broaden the scope of tactics used to eradicate illegal underground tunnels that traverse the U.S.-Mexico border would also put more responsibility on property owners to report suspicious activity. 

House Resolution 4119, also called the Border Tunnel Prevention Act and sponsored by U.S. Rep. Silvestre Reyes, D-El Paso, was passed out of the U.S. House Judiciary Committee by a voice vote Tuesday. If passed, wiretap authorizations generally associated with the investigations of crimes like corruption and drug trafficking could soon be expanded and used to investigate the construction of the tunnels.

Property owners on lands near the border would also be held more accountable. Current law calls for a maximum 10-year prison sentence for someone knowing “or recklessly disregarding” the construction or use of an unauthorized tunnel on land that the person owns or controls. The new law would require that the Department of Homeland Security conduct outreach annually and notify owners or tenants on land within one mile north of the border in high-risk zones about the laws and how to report violations to federal law enforcement. 

It is already illegal to construct or finance the building of unauthorized tunnels. Offenders can get a maximum sentence of 20 years in prison. But the use of tunnels among Mexican drug cartels along the U.S. border has increased dramatically. Reyes blames this on what he calls a “loophole” in the federal statute.

Of the 149 cross-border tunnels found since 1990, 139 have been found since 2001, according to language in the bill. Though the problem has largely been confined to Arizona and California, a 130-foot long passageway was discovered in El Paso in 2010. 

“Under current law, attempting or conspiring to use, construct or finance a cross-border tunnel is not prohibited, allowing criminal organizations to continue digging secret passageways to be used to funnel drugs, firearms, cash and people between the U.S. and Mexico with little risk of prosecution," Reyes, a former U.S. Border Patrol sector chief, said in a prepared statement. "The 2012 Border Tunnel Prevention Act would close this loophole and would also improve the tools available to investigate and prosecute individuals who construct cross-border tunnels.”

The wiretap language includes some oversight and minimization procedures, including immediate expiration after the authorized time period. Following the expiration of the wiretap authorization, all parties that were subject to it would have to be notified.

Although some lawmakers have voiced concerns that terrorists could team up with Mexican cartels to smuggle weapons or other threats into the country, government officials have stressed that they see no proof of that.

“Intelligence and law enforcement reporting indicates that DTOs [drug trafficking organizations] have not demonstrated any interest or intent in engaging in conducting smuggling on behalf of terrorists,” the Department of Justice said in its 2010 National Drug Threat Assessment.

A similar bill filed by U.S. Sen. Dianne Feinstein, D-Calif., was passed by the Senate in January. Reyes anticipates his bill will be taken up by the full House in the next few weeks.

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