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Published on February 13th, 2013 | by -swansong-1
Homeland Security Checkpoints: Constitution-Free Zones
In this article we will discuss Homeland Security checkpoints, the newly released report from the Department of Homeland Security civil rights watch dog and the impact it will continue to have on those travelling in and around the United States border. Is the DHS turning their checkpoints into constitution-free zones?
“They hate us for our freedoms”
After 9/11/01 that refrain was uttered time and again as the perceived justification for the attacks by “Al-Qaeda” on America, at home and abroad.
It wasn’t the Middle East regime changes, or the aiding and abetting of Israel in it’s treatment of Palestinians, or the theft of their lands. No, it was the Utopian freedoms Americans enjoy that really chapped their butts.
Oh, how the terrorists must be celebrating. You can almost hear the automatic weapons being fired into the air.
In 2008, under G.W.Bush, the DHS adopted a policy allowing it to search and/or seize, without suspicion, (reasonable or otherwise) the electronic devices of those at the border and Homeland Security checkpoints. To be sure the policy would be within the constitutional rules of acceptability the DHS ordered up a “Civil Liberties Impact Assesment”. The report was to have been completed within “120 days”. Three + years later it has now been released. Border Search Impact Assessment
Civil Rights/Civil Liberties Impact Assessment
Border Searches of Electronic Devices
ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.
We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.
The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects.
The contention that a laptop computer or smart phone is no different than any other item searched at a border crossing or Homeland Security checkpoint seems ludicrous to me. The glove compartment in my car doesn’t contain my personal writings, emails, bank account numbers, log-in info for this blog or a 1000 other things you’d find in my computer. The DHS clearly disagrees.
Between October 2008 and June 2010, over 6,500 people traveling to and from the United States had their electronic devices searched at the border. Nearly half of these people were U.S. citizens.
The devices the government searched included laptops, cell phones, cameras, hard drives, flash drives, and even DVDs.
Between October 2008 and June 2009, cell phones were the most commonly searched electronic devices, followed by laptops and digital cameras.
Between July 2008 and June 2009, border agents transferred data found on travelers’ electronic devices to other federal agencies over 280 times. Half of the time, these unnamed agencies asserted an independent basis for retaining or seizing the data
One of the 6,500 searches conducted at the border involved McGill University student Pascal Abidor, travelling by train to visit his parents in Brooklyn, NY in May 2010. When the train got to the Can/US border it was boarded by Customs officers who began to move through questioning passengers. When the officers got to Pascal he made his big mistake. He told the truth and found out in short order what the concept of a constitution-free zone is all about.
After looking over Pascal’s U.S. passport and customs declaration, Officer Tulip asked two simple questions: Where do you live, and why?
Pascal answered that he lived in Canada. He lived in Canada because that’s where he was pursuing a PhD in Islamic Studies.
Upon hearing of Pascal’s Islamic studies he was escourted to another part of the train, his laptop was opened and he was instructed to enter his password. As with most people with nothing to hide, he complied with the officer’s request. That was his second big mistake.
“At no point during a border search of electronic devices is it necessary to ask the traveler for consent to search.”
On Pascal’s computer were pictures of Hezbollah and Hamas rallies. Photos he took as part of his Phd research on the Shiites of modern Lebanon. Needless to say the customs officers didn’t find much to appreciate about that answer.
Then the real interrogation began, an hour and a half of intensive questioning. Where was he born? Where were his parents born? What religion was he raised with? Had he ever been to a rally in the Middle East? Had he heard any anti-American statements in the Middle East? Had he ever seen an American flag burned? Had he ever been to a mosque? But the questions always came back to the same point – why Islamic Studies?
Following his detainment and questioning Pascal, with the help of ACLU lawyers, brought a “complaint” against Janet Napolitano, Director of Homeland Security. The complaint is a precursor to a lawsuit.
The goverment has made efforts to have the suit thrown out, not because Mr. Pascal’s version of events is incorrect but rather, because the goverment is confident it has committed no violations.
Mr. Pascal and his lawyers are awaiting word from a Brooklyn judge on their request to allow the suit to proceed.
As disturbing as the concept of suspicionless examinations/seizures of personal electronics at Homeland Security checkpoints is, in reality, many true-blue patriots will see it as a necessary evil in a dangerous world. One wonders how accomadating they’ll be when the search and/or seizure occurs 100 miles from the border?
Government agents should not have the right to stop and question Americans anywhere without suspicion within 100 miles of the border, the American Civil Liberties Union said Wednesday, pointing attention to the little known power of the federal government to set up immigration checkpoints far from the nation’s border lines.
The government has long been able to search people entering and exiting the country without need to say why, which is known as the border search exception of the Fourth Amendment.
After 9/11, Congress gave the Department of Homeland Security the right to use some of its powers deeper within the country, and now DHS has set up at least 33 internal checkpoints where they stop people, question them and ask them to prove citizenship, according to the ACLU.
If you do a little searching on the interwebs you can find videos of real patriots standing up to these ever expanding intrusions into the lives of the law abiding.
A quick youtube search of “dhs checkpoints” will turn up many examples. This video highlights some of the checkpoint refusals by freedom lovers.
We here, in Canada, are no strangers to such intrusions although, ours usually come in the form of holiday/long weekend checkpoints on the lookout for drunk drivers. These are typically carried out by local law enforcement but are also conducted by the national RCMP. Keeping drunk drivers off the roads is certainly a worthwhile endeavor, which is precisely why innocent people are willing to sacrifice that piece of their basic freedoms. Unfortunately once the precedent has been set the state will only accelerate it’s efforts.
Perhaps the thought process behind these constituional violations is, if the terrorists hate us for our freedoms, maybe, if we take enough of them away, they won’t hate us anymore.
“Freedom of movement is the very essence of our free society —
once the right to travel is curtailed, all other rights suffer.”—
William O. Douglas (1898-1980), U. S. Supreme Court Justice